prisons and prison culture:
“Treating prisoners not as objects, but as the human
beings they are, no matter how despicable their prior
actions, will demonstrate an unflagging commitment
to human dignity. It is that commitment to human
dignity that will, in the end, be the essential
underpinning of any endeavor to transform prison
cultures.”9
56. The sum and substance of the aforesaid discussion is that
prisoners, like all human beings, deserve to be treated with dignity.
8 Vivien Stern, A Sin Against the Future: Imprisonment in the World 192 (1998).
9 The Mess We’re In: Five Steps Towards the Transformation of Prison Cultures by Lynn
S. Branham, Indiana Law Review, Vol. 44, p. 703, 2011
To give effect to this, some positive directions need to be issued by
this Court and these are as follows:
1. The Under Trial Review Committee in every district should
meet every quarter and the first such meeting should take
place on or before 31st March, 2016. The Secretary of the
District Legal Services Committee should attend each
meeting of the Under Trial Review Committee and follow
up the discussions with appropriate steps for the release
of undertrial prisoners and convicts who have undergone
their sentence or are entitled to release because of
remission granted to them.
2. The Under Trial Review Committee should specifically look
into aspects pertaining to effective implementation of
Section 436 of the Cr.P.C. and Section 436A of the Cr.P.C.
so that undertrial prisoners are released at the earliest
and those who cannot furnish bail bonds due to their
poverty are not subjected to incarceration only for that
reason. The Under Trial Review Committee will also look
into issue of implementation of the Probation of Offenders
Act, 1958 particularly with regard to first time offenders so
that they have a chance of being restored and
rehabilitated in society.
W.P. (C) No. 406 of 2013 Page 31 of 343. The Member Secretary of the State Legal Services
Authority of every State will ensure, in coordination with
the Secretary of the District Legal Services Committee in
every district, that an adequate number of competent
lawyers are empanelled to assist undertrial prisoners and
convicts, particularly the poor and indigent, and that legal
aid for the poor does not become poor legal aid.
4. The Secretary of the District Legal Services Committee will
also look into the issue of the release of undertrial
prisoners in compoundable offences, the effort being to
effectively explore the possibility of compounding offences
rather than requiring a trial to take place.
5. The Director General of Police/Inspector General of Police
in-charge of prisons should ensure that there is proper
and effective utilization of available funds so that the living
conditions of the prisoners is commensurate with human
dignity. This also includes the issue of their health,
hygiene, food, clothing, rehabilitation etc.
6. The Ministry of Home Affairs will ensure that the
Management Information System is in place at the earliest
in all the Central and District Jails as well as jails for
women so that there is better and effective management of
W.P. (C) No. 406 of 2013 Page 32 of 34the prison and prisoners.
7. The Ministry of Home Affairs will conduct an annual
review of the implementation of the Model Prison Manual
2016 for which considerable efforts have been made not
only by senior officers of the Ministry of Home Affairs but
also persons from civil society. The Model Prison Manual
2016 should not be reduced to yet another document that
might be reviewed only decades later, if at all. The annual
review will also take into consideration the need, if any, of
making changes therein.
8. The Under Trial Review Committee will also look into the
issues raised in the Model Prison Manual 2016 including
regular jail visits as suggested in the said Manual.
We direct accordingly.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.406/2013
RE - INHUMAN CONDITIONS IN 1382 PRISONS
Dated;February 5, 2016
O R D E R
Madan B. Lokur, J.
1. Prison reforms have been the subject matter of discussion
and decisions rendered by this Court from time to time over the
last 35 years. Unfortunately, even though Article 21 of the
Constitution requires a life of dignity for all persons, little appears
to have changed on the ground as far as prisoners are concerned
and we are once again required to deal with issues relating to
prisons in the country and their reform.
2. As far back as in 1980, this Court had occasion to deal with
the rights of prisoners in Sunil Batra (II) v. Delhi
Administration.
1
In that decision, this Court gave a very obvious
answer to the question whether prisoners are persons and whether
they are entitled to fundamental rights while in custody, although
there may be a shrinkage in the fundamental rights. This is what
1
(1980) 3 SCC 488
W.P. (C) No. 406 of 2013 Page 1 of 34this Court had to say in this regard:
“Are prisoners persons? Yes, of course. To answer in the
negative is to convict the nation and the Constitution of
dehumanization and to repudiate the world legal order,
which now recognises rights of prisoners in the
International Covenant on Prisoners’ Rights to which
our country has signed assent. In Batra case,
2
this
Court has rejected the hands-off doctrine and it has
been ruled that fundamental rights do not flee the
person as he enters the prison although they may suffer
shrinkage necessitated by incarceration.
3. A little later in the aforesaid decision, this Court pointed out
the double handicap that prisoners face; the first being that most
prisoners belong to the weaker sections of society and the second
being that since they are confined in a walled-off world their voices
are inaudible. This is what this Court had to say in this regard:
“Prisoners are peculiarly and doubly handicapped. For
one thing, most prisoners belong to the weaker
segment, in poverty, literacy, social station and the like.
Secondly, the prison house is a walled-off world which
is incommunicado for the human world, with the result
that the bonded inmates are invisible, their voices
inaudible, their injustices unheeded. So it is imperative,
as implicit in Article 21, that life or liberty, shall not be
kept in suspended animation or congealed into animal
existence without the freshening flow of fair procedure.”
4. In Rama Murthy v. State of Karnataka3
this Court
identified as many as nine issues facing prisons and needing
reforms. They are:
(i) over-crowding;
2
(1978) 4 SCC 494
3
(1997) 2 SCC 642
W.P. (C) No. 406 of 2013 Page 2 of 34(ii) Delay in trial;
(iii) Torture and ill-treatment;
(iv) Neglect of health and hygiene;
(v) Insubstantial food and inadequate clothing;
(vi) Prison vices;
(vii) Deficiency in communication;
(viii) Streamlining of jail visits;
(ix) Management of open air prisons.
This Court expressed the view that these major problems need
immediate attention. Unfortunately, we are still struggling with a
resolution of at least some of these problems.
5. In T. K. Gopal v. State of Karnataka4
this Court
advocated a therapeutic approach in dealing with the criminal
tendencies of prisoners. It was pointed out that there could be
several factors that lead a prisoner to commit a crime but
nevertheless a prisoner is required to be treated as a human being
entitled to all the basic human rights, human dignity and human
sympathy. It was pointed out that it is this philosophy that has
persuaded this Court in a series of decisions to project the need for
prison reforms. This is what this Court had to say:
“The therapeutic approach aims at curing the criminal
tendencies which were the product of a diseased
psychology. There may be many factors, including
4
(2000) 6 SCC 168
W.P. (C) No. 406 of 2013 Page 3 of 34family problems. We are not concerned with those
factors as therapeutic approach has since been treated
as an effective method of punishment which not only
satisfies the requirements of law that a criminal should
be punished and the punishment prescribed must be
meted out to him, but also reforms the criminal through
various processes, the most fundamental of which is
that in spite of having committed a crime, maybe a
heinous crime, he should be treated as a human being
entitled to all the basic human rights, human dignity
and human sympathy. It was under this theory that
this Court in a stream of decisions, projected the need
for prison reforms, the need to acknowledge the vital
fact that the prisoner, after being lodged in jail, does not
lose his fundamental rights or basic human rights and
that he must be treated with compassion and
sympathy.”
6. In this background, a letter on 13th June, 2013 addressed by
Justice R.C. Lahoti, a former Chief Justice of India to Hon’ble the
Chief Justice of India relating to conditions in prisons is rather
disturbing. Justice R.C. Lahoti invited attention to the inhuman
conditions prevailing in 1382 prisons in India as reflected in a
Graphic Story appearing in Dainik Bhaskar (National Edition) on
24th March, 2013. A photocopy of the Graphic Story was attached
to the letter.
Justice R.C. Lahoti pointed out that the story highlights:
(i) Overcrowding of prisons;
(ii) Unnatural death of prisoners;
(iii) Gross inadequacy of staff and
(iv) Available staff being untrained or inadequately trained.
W.P. (C) No. 406 of 2013 Page 4 of 347. Justice R.C. Lahoti also pointed out that the State cannot
disown its liability to the life and safety of a prisoner once in
custody and that there were hardly any schemes for reformation for
first time offenders and prisoners in their youth and to save them
from coming into contact with hardened prisoners.
8. Justice R.C. Lahoti ended the letter by submitting that the
Graphic Story raised an issue that needed to be taken note of and
dealt with in public interest by this Court and that he was inviting
the attention of this Court in his capacity as a citizen of the
country. We may say that Justice R.C. Lahoti has brought an
important issue to the forefront, dispelling the view:
“Judges rarely express concern for the inhumane
treatment that the person being sentenced is likely to
face from fellow prisoners and prison officials, or that
time in prison provides poor preparation for a productive
life afterwards. Courts rarely consider tragic personal
pasts that may be partly responsible for criminal
behavior, or how the communities and families of a
defendant will suffer during and long after his
imprisonment.”5
9. By an order dated 5th July, 2013 the letter was registered as
a public interest writ petition and the Registry of this Court was
directed to take steps to issue notice to the appropriate authorities
after obtaining a list from the office of the learned Attorney General.
10. In reply to the notice issued by this Court, several States and
Union Territories gave their response either in the form of
5 Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to
Constitutional Discourse by Eva S. Nilsen, Boston University School of Law Working Paper
Series, Public Law & Legal Theory Working Paper No. 07-33
W.P. (C) No. 406 of 2013 Page 5 of 34communications addressed to the Registry of this Court or in the
form of affidavits. It is not necessary for us to detail each of the
responses. Suffice it to say that on the four issues raised by
Justice R.C. Lahoti there is general consensus that the prisons
(both Central and District) are over-crowded, some unnatural
deaths have taken place in some prisons, there is generally a
shortage of staff and it is not as if all of them are adequately and
suitably trained to handle issues relating to the management of
prisons and prisoners and finally that steps have been taken for
the reformation and rehabilitation of prisoners. However, a closer
scrutiny of the responses received indicates that by and large the
steps taken are facile and lack adequate sincerity in
implementation.
11. In view of the above, the Social Justice Bench of this Court
passed an order on 13th March, 2015 requiring the Union of India
to furnish certain information primarily relating to the more serious
issue of over-crowding in prisons and improving the living
conditions of prisoners. The order passed by the Social Justice
Bench on 13th March, 2015 reads as follows:-
“We have heard learned Additional Solicitor General
and would like information on the following issues:
(i) The utilization of the grant of Rs.609 crores under the
13th Finance Commission for the improvement of
W.P. (C) No. 406 of 2013 Page 6 of 34conditions in prisons.
(ii) The grant to the States in respect of the prisons under
the 14th Finance Commission.
(iii) Steps taken and being taken by the Central Government
as well as by the State Governments for effective
implementation of Section 436A of the Code of Criminal
Procedure, 1973.
(iv) Steps taken and being taken by the Central Government
and the State Governments for effective implementation
of the Explanation to Section 436 of the Code of
Criminal Procedure, 1973 and the number of persons in
custody due to their inability to provide adequate
security/surety for their release on bail.
(v) The number of persons in custody who have committed
compoundable offences and are languishing in custody.
(vi) Steps taken for the effective implementation of the
Repatriation of Prisoners Act, 2003.
We expect all the State Governments to fully cooperate
with the Central Government in this regard since the matter
involves Article 21 of the Constitution and to furnish
necessary information within three weeks.
List the matter on 24th April, 2015.”
12. In compliance with the aforesaid order, the Union of India
through the Ministry of Home Affairs filed a detailed affidavit dated
23rd April, 2015. It was stated in the affidavit that all States and
Union Territories were asked to provide the information as required
by this Court but in spite of reminders and meetings, the
information had not been received from the State of Uttarakhand
and the Union Territories of Dadra & Nagar Haveli, Daman & Diu
and Lakshadweep.
13. It was stated that one of the problems faced in aggregating
the information that had been received was that management
W.P. (C) No. 406 of 2013 Page 7 of 34information systems were not in place in a comprehensive manner.
To remedy this situation an e-prisons application was being
designed so that all essential data could be centrally aggregated. It
was stated in the affidavit that a draft project report was being
prepared through a project management consultancy so that an
e-prisons application could be rolled out with integrated
information in all States and Union Territories comprehensively for
better monitoring of the status of prisoners, particularly undertrial
prisoners.
14. In response to the first issue, it was pointed out in the
affidavit in the form of a tabular statement that funds were made
available under the 13th Finance Commission for the improvement
of conditions in prisons in respect of several States. We are
surprised that no grant was allotted in as many as 19 States and in
the States where grants were allotted, the utilization was less than
100%, except in the State of Tripura.
15. With regard to the grant under the 14th Finance Commission,
it was stated that the 14th Finance Commission had reported that
the States have the appropriate fiscal space to provide for the
additional expenditure needs as per their requirements. The 14th
Finance Commission did not make any specific fund allocation in
favour of the Central Government but the States had projected
W.P. (C) No. 406 of 2013 Page 8 of 34their demands individually and the tabular statement in that
regard is annexed to the affidavit. As far as the Union Territories
are concerned, apart from Delhi and Puducherry none of the Union
Territories had projected any demand.
16. With regard to the third issue regarding effective
implementation of Section 436A of the Code of Criminal Procedure,
(for short the Cr.P.C.), the affidavit stated that an advisory had
been issued by the Ministry of Home Affairs of the Government of
India on 17th January, 2013 to all the States and Union Territories
to implement the provisions of Section 436A of the Cr.P.C. to
reduce overcrowding in prisons. Among the measures suggested in
this regard by the Ministry of Home Affairs was the constitution of
a Review Committee in every district with the District Judge in the
Chair with the District Magistrate and the Superintendent of Police
as Members to meet every three months and review the cases of
undertrial prisoners. The Jail Superintendents were also required
to conduct a survey of all cases where undertrial prisoners have
completed more than one fourth of the maximum sentence and
send a report in this regard to the District Legal Services
Committee constituted under The Legal Services Authorities Act,
1987 as well as to the Review Committee. It was also suggested
that the prison authorities should educate undertrials of their right
W.P. (C) No. 406 of 2013 Page 9 of 34to bail and the District Legal Services Committee should provide
legal aid through empanelled lawyers to the undertrial prisoners for
their release on bail or for the reduction of the bail amount. The
Home Department of the States was also requested to develop a
management information system to ascertain the jail-wise progress
in this regard.
17. The aforesaid advisory dated 17th January, 2013 was
followed up through a letter of the Union Home Minister to the
Chief Ministers/Lieutenant Governors on 3rd September, 2014. It
was pointed out in the letter that as per the statistics provided by
the National Crime Records Bureau (NCRB) as on 31st December,
2013 the number of undertrial prisoners was 67.6% of the entire
prison population and that the percentage was unacceptably high.
In this context it was suggested that the provisions of Section 436
of the Cr.P.C. as well as Section 436A of the Cr.P.C. had to be made
use of. It was also suggested that steps be taken to utilize the
provisions of plea bargaining, the establishment of fast track
courts, holding of Lok Adalats and ensuring adequate means for
the production of the accused before the Court directly or through
video conferencing.
18. Yet another letter was sent to the Director General of Prisons
of all States/Union Territories on 22nd September, 2014 by the
W.P. (C) No. 406 of 2013 Page 10 of 34Ministry of Home Affairs drawing attention to the directions of this
Court in Bhim Singh v. Union of India dated 5th September,
20146
relating to Section 436A of the Cr.P.C. and to take necessary
steps to comply with the orders passed by this Court.
19. In a similar vein, yet another advisory was issued by the
Government of India on 27th September, 2014. It was averred in the
affidavit that as a result of these advisories and communications,
some undertrial prisoners have been released in implementation of
the provisions of Section 436A of the Cr.P.C.
20. With regard to the fourth issue concerning the effective
implementation of Section 436 of the Cr.P.C., the affidavit stated
that an advisory was issued way back on 9th May, 2011 in which it
was pointed out, inter alia, that prison overcrowding compels
prisoners to be kept under conditions that are unacceptable in light
of the United Nations Standard Minimum Rules for Treatment of
Offenders to which India is the signatory. It was pointed that as
per the statistics prepared by the NCRB as on 31st December, 2008
prisons in India are overcrowded to the extent of 129%. The
advisory highlighted some measures taken by some of the States to
reduce the number of undertrial prisoners, including their release
under the provisions of the Probation of Offenders Act, 1958 and
encouraging NGOs in association with District Legal Services
6 MANU/SC/0786/2014
W.P. (C) No. 406 of 2013 Page 11 of 34Committees to arrange legal aid for unrepresented undertrial
prisoners as well as to implement the guidelines issued by the
Bombay High Court in Rajendra Bidkar v. State of
Maharashtra, CWP No. 386 of 2004 (unreported decision).
21. With regard to the fifth issue relating to the number of
persons who have been languishing in jails in compoundable
offences, a chart was annexed to the affidavit which indicated, by
and large, that quite a few States had taken no effective steps in
this regard particularly Andhra Pradesh, Assam, Chhattisgarh,
Haryana, Kerala, Mizoram, Nagaland, Odisha, Punjab, Rajasthan,
Telangana, Tripura and Uttar Pradesh. The reason why many
undertrial prisoners had not been released was their inability to
provide security and surety for their release. The steps taken to
have these prisoners released from custody were not indicated in
the affidavit.
22. With regard to the effective implementation of the
Repatriation of Prisoners Act, 2003 it was stated that agreements
on transfer of sentenced persons have been bilaterally signed with
25 countries but the agreements are operational after ratification
by both sides only with respect to 18 countries. In addition,
transfer arrangements have been made with 19 countries under the
Inter-American Convention on Serving Criminal Sentences Abroad
W.P. (C) No. 406 of 2013 Page 12 of 34thereby making the total number of countries with which transfer
arrangements have been made for prisoners to 37 countries.
23. Keeping in view the affidavit dated 23rd April, 2015 filed by
the Ministry of Home Affairs and the somewhat lukewarm response
of the States and Union Territories, the Social Justice Bench
passed the following directions on 24th April, 2015:
“We have perused the affidavit filed by the Ministry of Home
Affairs on 23rd April, 2015 and have heard learned counsel.
The admitted position is 67% of all the prisoners in jails are
under trial prisoners. This is an extremely high percentage and
the number of such prisoners is said to be about 2,78,000 as on
31st December, 2013.
Keeping this in mind and the various suggestions that have
been made in the affidavit, we are of the view that the following
directions need to be issued:
1. A Prisoners Management System (a sort of Management
Information System) has been in use in Tihar Jail for
quite some time, as stated in the affidavit. The Ministry
of Home Affairs should carefully study this application
software and get back to us on the next date of hearing
with any suggestions or modifications in this regard, so
that the software can be improved and then deployed in
other jails all over the country, if necessary.
2. We would like the assistance of the National Legal
Services Authority (NALSA) in this matter of crucial
importance concerning prisoners in the country. We
direct the Member Secretary of NALSA to appoint a
senior judicial officer as the nodal officer to assist us
and deal with the issues that have arisen in this case.
3. For the purpose of implementation of Section 436A of
the Code of Criminal Procedure, 1973 (for short “the
Code”), the Ministry of Home Affairs has issued an
Advisory on 17th January, 2013. One of the
W.P. (C) No. 406 of 2013 Page 13 of 34requirements of the Advisory is that an Under Trial
Review Committee should be set up in every district.
The composition of the Under Trial Review Committee is
the District Judge, as Chairperson, the District
Magistrate and the District Superintendent of Police as
members.
The Member Secretary of NALSA will, in
coordination with the State Legal Services Authority
and the Ministry of Home Affairs, urgently ensure that
such an Under Trial Review Committee is established in
every District, within one month. The next meeting of
each such Committee should be held on or about 30th
June, 2015.
4. In the meeting to be held on or about 30th June, 2015,
the Under Trial Review Committee should consider the
cases of all under trial prisoners who are entitled to the
benefit of Section 436A of the Code. The Ministry of
Home Affairs has indicated that in case of multiple
offences having different periods of incarceration, a
prisoner should be released after half the period of
incarceration is undergone for the offence with the
greater punishment. In our opinion, while this may be
the requirement of Section 436A of the Code, it will be
appropriate if in a case of multiple offences, a review is
conducted after half the sentence of the lesser offence is
completed by the under trial prisoner. It is not
necessary or compulsory that an under trial prisoner
must remain in custody for at least half the period of
his maximum sentence only because the trial has not
been completed in time.
5. The Bureau of Police Research and Development had
circulated a Model Prison Manual in 2003, as stated in
the affidavit. About 12 years have gone by and since
then there has been a huge change in circumstances
and availability of technology. We direct the Ministry of
Home Affairs to ensure that the Bureau of Police
Research and Development undertakes a review of the
Model Prison Manual within a period of three months.
We are told that a review has already commenced. We
expect it to be completed within three months.
W.P. (C) No. 406 of 2013 Page 14 of 346. The Member Secretary of NALSA should issue directions
to the State Legal Services Authorities to urgently take
up cases of prisoners who are unable to furnish bail
and are still in custody for that reason. From the
figures that have been annexed to the affidavit filed by
the Ministry, we find that there are a large number of
such prisoners who are continuing in custody only
because of their poverty. This is certainly not the spirit
of the law and poverty cannot be a ground for
incarcerating a person. As per the figures provided by
the Ministry of Home Affairs, in the State of Uttar
Pradesh, there are as many as 530 such persons. The
State Legal Services Authorities should instruct the
panel lawyers to urgently meet such prisoners, discuss
the case with them and move appropriate applications
before the appropriate court for release of such persons
unless they are required in custody for some other
purposes.
7. There are a large number of compoundable offences for
which persons are in custody. No attempt seems to
have been made to compound those offences and
instead the alleged offender has been incarcerated. The
State Legal Services Authorities are directed, through
the Member Secretary of NALSA to urgently take up the
issue with the panel lawyers so that wherever the
offences can be compounded, immediate steps should
be taken and wherever the offences cannot be
compounded, efforts should be made to expedite the
disposal of those cases or at least efforts should be
made to have the persons in custody released
therefrom at the earliest.
A copy of this order be given immediately to the Member
Secretary, NALSA for compliance.
List the matter on 7th August, 2015 for further directions
and updating the progress made.
For the present, the presence of learned counsel for the
States and Union Territories is not necessary. Accordingly,
their presence is dispensed with.”
24. The order dated 24th April, 2015 made a pointed reference to
W.P. (C) No. 406 of 2013 Page 15 of 34the extremely high percentage of undertrial prisoners and the total
number of prisoners as on 31st December, 2013.
25. Reference was also made to the fact that the Bureau of Police
Research and Development had circulated a Model Prison Manual
in 2003 but since about 12 years had gone by, the Ministry of
Home Affairs was directed to ensure that the Bureau of Police
Research and Development undertakes a review of the Model Prison
Manual within a period of three months.
26. Directions were also issued for the assistance of the National
Legal Services Authority (NALSA) to assist the Social Justice Bench
and deal with the issues that had arisen in the case.
27. A direction was also issued to ensure that the Under Trial
Review Committee is established within one month in all districts
and the next meeting of that Committee in each district should be
held on or about 30th June, 2015. NALSA was required to take up
the issue of undertrial prisoners particularly in the State of Uttar
Pradesh where as many as 530 persons were in custody only
because of their poverty.
28. Pursuant to the aforesaid order and directions, NALSA filed a
compliance report on 4th August, 2015 in which it was stated that
steps have been taken to ensure that Under Trial Review
Committees are set up in every district and the State Legal Services
W.P. (C) No. 406 of 2013 Page 16 of 34Authorities had also been asked to take up the cases of prisoners
who were unable to furnish bail bonds and to move appropriate
applications on their behalf.
29. The compliance report stated that with regard to the
Prisoners Management System, the Ministry of Home Affairs had
already appointed a project management consultant to prepare a
detailed project report for the e-Prisons project. It was stated that
there were four prison software applications that had been
developed by (i) National Informatics Centre (ii) Goa Electronic Ltd.
(iii) Gujarat Government through TCS and (iv) Phoenix for Prison
Management System in Haryana. The various applications would
be evaluated and discussed in a conference of the Director General
(Prisons)/Inspector General (Prisons) to be held on 20th August,
2015.
30. The compliance report also indicated a break-up of the
meetings of the Under Trial Review Committees that had been set
up in the various States and that reports of the meeting that were
directed to be held on or about 30th June, 2015 were still awaited
from a few States and Union Territories.
31. As regards the Model Prison Manual it was submitted that a
draft had been prepared and was circulated for comments and a
further meeting was scheduled to be held in August, 2015 to
W.P. (C) No. 406 of 2013 Page 17 of 34finalize the draft.
32. With regard to the cases of undertrial prisoners who were
unable to furnish bail bonds it was stated that as many as 3470
such persons were in custody due to their inability to furnish bail
bonds and a maximum number of such undertrial prisoners were
in the State of Maharashtra, that is, 797 undertrial prisoners. It
was stated that as many as 3278 undertrial prisoners were those
who were involved in compoundable offences and efforts were being
made to expedite the disposal of their cases.
33. Keeping in view the compliance report as well as some of the
gaps that appeared necessary to be filled up, the Social Justice
Bench passed an order dated 7th August, 2015 requiring, inter alia,
the Under Trial Review Committee to include the Secretary of the
District Legal Services Committee as one of the members of the
Review Committee. The Ministry of Home Affairs was directed to
issue an appropriate order in this regard.
34. With regard to the Model Prison Manual, it was suggested to
the learned Additional Solicitor General appearing on behalf of the
Union of India that the composition of the Committee looking into
the Model Prison Manual should be a multi-disciplinary body
involving members from civil society and NGOs as well as other
experts. It was also directed that the Model Prison Manual should
W.P. (C) No. 406 of 2013 Page 18 of 34look into providing a crèche for the children of prisoners.
35. With regard to the large number of undertrial prisoners in
the State of Maharashtra, it was directed that the matter should be
reviewed and an adequate number of legal aid lawyers may be
appointed so that necessary steps could be taken with regard to the
release of undertrial prisoners in accordance with law, particularly
those who had been granted bail but were unable to furnish the
bail bond due to their poverty.
The order dated 7th August, 2015 reads as follows:-
“We have gone through the compliance report filed on
behalf of NALSA and we appreciate the work done by NALSA
within the time frame prescribed.
We find from the report that the Under Trial Review
Committees have been established in large number of
districts but they have not been established in all the
districts across the country. Mr. Rajesh Kumar Goel,
Director, NALSA - the nodal officer will look into the matter
and ensure that, wherever necessary, the Under Trial
Review Committee should be established and should meet
regularly.
We are told that the Under Trial Review Committee
consists of the District Judge, the Superintendent of Police
and the District Magistrate. Since the issues pertaining to
under trial prisoners are also of great concern of the District
Legal Services Authorities, we direct that the Under Trial
Review committee should also have the Secretary of the
District Legal Services Authority as one of the members of
the Committee. The Ministry of Home Affairs will issue a
necessary order in this regard to the Superintendent of
Police to associate the Secretary of the District Legal
Services Authority in such meetings.
W.P. (C) No. 406 of 2013 Page 19 of 34It is stated that so far as a software for the prisoners is
concerned, the Ministry of Home Affairs has appointed a
Project Management Consultant and at present there are
four kinds of software in existence in the country with
regard to prison management. It is stated that a meeting
will be held on 20th August, 2015 with the Director General
(Prisons)/Inspector General (Prisons) to evaluate the
existing application software.
We expect an early decision in the matter and early
implementation of the decision that is taken.
It is stated that a Model Prison Manual is being looked
into since the earlier Manual was of considerable vintage.
We are told that a meeting is likely to be held towards the
end of this month to finalize the Model Prison Manual.
Learned ASG is unable to inform us about the
composition of the Committee that is looking into the Model
Prison Manual. We have suggested to him (and this
suggestion has been accepted) that a multi-disciplinary
body including members from Civil Society, NGOs
concerned with under trial prisoners as also experts from
some other disciplines, including academia and whose
assistance would be necessary, should also be associated in
drafting the comprehensive Model Prison Manual.
To the extent possible, the Model Prison Manual should
be finalized at the earliest and preferably within a month or
two, but after having extensive and intensive consultations
with a multi-disciplinary body as above.
In the Model Prison Manual, the Ministry of Home
Affairs should also look into the possibility of having a
creche for the children of prisoners, particularly women
prisoners as it exists in Tihar Jail.
We find that the number of under trial prisoners in the
State of Maharashtra is extremely large and we also think
that there are not adequate number of legal aid lawyers to
look into the grievances of under trial prisoner. Mr. Rajesh
Kumar Goel, Director, NALSA says on behalf of NALSA that
necessary steps will be taken to appoint adequate number
W.P. (C) No. 406 of 2013 Page 20 of 34of legal aid lawyers so that necessary steps can be taken
with regard to the release of under trial prisoners in
accordance with law including those who have been granted
bail but are unable to furnish the bail bond.
List the matter on 18th September, 2015.”
36. When the matter was taken up by the Social Justice Bench
on 18th September, 2015, Mr. Gaurav Agrawal, Advocate was
appointed as Amicus Curiae to assist the Social Justice Bench.
37. On that date, the learned Additional Solicitor General
informed the Social Justice Bench that the Ministry of Home Affairs
had duly written to the Directors General of all the States and
Union Territories to ensure that the Secretary of the District Legal
Services Committee is included as a member in the Under Trial
Review Committee. The learned Additional Solicitor General also
informed that the Model Prison Manual was likely to be made
available sometime in the middle of December, 2015.
38. It was pointed out on behalf of NALSA by Mr. Rajesh Kumar
Goel that some clarity was required with respect to paragraph 4 of
the order dated 24th April, 2015. In view of this request, it was
clarified that there is no mandate that a person who has completed
half the period of sentence, in the case of multiple offences, should
be released. This was entirely for the Under Trial Review
Committee to decide and there was no direction given for release in
this regard.
W.P. (C) No. 406 of 2013 Page 21 of 3439. With regard to the large number of undertrial prisoners in
Maharashtra who were entitled to bail, it was submitted that out of
797 such undertrial prisoners nearly 503 had been released and
that steps were being taken with regard to the remaining undertrial
prisoners.
40. The order passed by the Social Justice Bench on 18th
September, 2015 reads as follows:-
“This petition pertains to what has been described as
inhuman conditions in 1382 prisons across the country.
On our request, Mr. Gaurav Agrawal, Advocate has agreed
to assist us in the matter as Amicus Curiae since the
complaint was received by Post. The Registry should give a
copy each of all the documents in this matter to Mr. Gaurav
Agrawal.
Learned Additional Solicitor General has drawn our
attention to the order dated 7th August, 2015 and in
compliance thereof he has stated that the Ministry of Home
Affairs has written to the Directors General of all the
States/Union Territories on 14th August, 2015 to ensure that
the Secretary of the District Legal Services Committee is
included as a member in the Under Trial Review Committee. A
similar letter was written by NALSA on 11th August, 2015.
NALSA should follow up on this and ensure that it is
effectively represented in the Under Trial Review Committee.
It is not yet clear whether the Under Trial Review
Committee has been set up in every District. Learned
Additional Solicitor General and Mr. Rajesh Kumar Goel,
Director, NALSA will look into this and let us know the
progress on the next date of hearing.
As far as the software for Prison Management is concerned,
it is stated by the learned Additional Solicitor General that all
the Directors General of Police have been asked to intimate
W.P. (C) No. 406 of 2013 Page 22 of 34which of the four available software is acceptable to them. He
further states that the software will be integrated on the cloud
so that all information can be made available regardless of
which software is being utilized. He expects the needful to be
done within a period of about two months.
We expect the Directors General of Police in every
State/Union Territory to respond expeditiously to any request
made by the Ministry of Home Affairs in this regard.
With regard to the Model Prison Manual of 2003, it is
stated by the learned Additional Solicitor General that
meetings have been held in this regard and it is expected that
the Model Prison Manual will be made available by sometime
in the middle of December, 2015. He states that people from
academia as well as NGOs are associated in the project. It is
expected that the Prison Manual will also take care of
establishing a creche in respect of women prisoners who have
children.
With regard to the release of under trial prisoners,
particularly in the States of Uttar Pradesh and Maharashtra,
as mentioned in our order dated 24th April, 2015, learned
Additional Solicitor General says that at the present moment
he does not have any instructions in this regard, but the
Ministry of Home Affairs will write to the State
Governments/Union Territories to take urgent steps in terms
of our orders.
Mr. Rajesh Kumar Goel, Director, NALSA says that legal
aid lawyers have been instructed to take steps for the possible
release of under trial prisoners in accordance with law.
Mr. Rajesh Kumar Goel has also drawn our attention to
paragraph 4 of the order dated 24th April, 2015. We make it
clear that there is no mandate that a person who has
completed half the period of his sentence, in the case of
multiple offences, should be released. This is entirely for the
Under Trial Review Committee and the competent authority to
decide and there is absolutely no direction given by this Court
for release of such under trials. Their case will have to be
considered by the Under Trial Review Committee and the
competent authority in accordance with law.
W.P. (C) No. 406 of 2013 Page 23 of 34Mr. Rajesh Kumar Goel, Director, NALSA says that steps
are being taken to appoint an adequate number of panel
lawyers.
With reference to the release of under trial prisoners, he
says that in the State of Maharashtra, as per the information
available, 797 under trial prisoners were entitled to bail and
with the efforts of the State Legal Services Authority, nearly
503 have since been released. Steps are being taken with
regard to the remaining under trial prisoners.
Mr. Rajesh Kumar Goel, Director, NALSA says that the
Member Secretaries of the State Legal Services Authority will
be advised to compile relevant information with regard to the
cases of compoundable offences pending in the States so that
they can also be disposed of at the earliest. We expect the
States of Uttar Pradesh and Maharashtra to expeditiously
respond to the letter written by NALSA since the maximum
number of cases pertaining to compoundable offences are
pending in these States.
List the matter on 16th October, 2015.”
41. Pursuant to the aforesaid order, NALSA filed another
compliance report dated 14th October, 2015 in which it was stated
that an Under Trial Review Committee had been set up in every
district. However, the annexure to the compliance report indicated
that no information was available from the State of Jammu &
Kashmir and in some States particularly Gujarat and Uttar
Pradesh and the Union Territory of Andaman & Nicobar Islands,
the Secretary of the District Legal Services Committee was not
made a member of the Review Committee.
42. It was also stated that the State Legal Services Authority had
been requested to appoint an adequate number of panel lawyers
W.P. (C) No. 406 of 2013 Page 24 of 34and to instruct them to take steps for the early release of undertrial
prisoners.
43. When the matter was taken up on 16th October, 2015 the
Social Justice Bench expressed its distress that only three States
had responded to the information sought by the Ministry of Home
Affairs with regard to holding the quarterly meeting of the Under
Trial Review Committee on or before 30th September, 2015.
Learned counsel appearing for the Union of India stated that the
matter would be taken up with all the State Governments with due
seriousness and it would be ensured that such meetings are held
regularly. It was also stated that the latest status report would be
filed in the second week of January, 2016.
44. Learned amicus curiae informed the Social Justice Bench
that the Under Trial Review Committee had been set up in every
district and a representative of the District Legal Services
Committee was included in the said Committee.
The order dated 16th October, 2015 reads as follows:-
“It is very disconcerting to hear from learned counsel for
the Union of India that there is no information available
except from three States with regard to the release of under
trial prisoners.
A meeting of the Under Trial Review Committee was supposed
to be held on or before 30th September, 2015, but only three
States have responded to the information sought by the
Ministry of Home Affairs, Government of India.
W.P. (C) No. 406 of 2013 Page 25 of 34Learned counsel for the Union of India says that the matter
will now be taken up very seriously with all the State
Governments and the Union Territories and it will be ensured
that the meetings are regularly held in terms of the Advisories
given by the Ministry of Home Affairs at least once in every
three months.
Learned counsel for the Union of India also says that the
latest status report will be filed in the second week of
January, 2016.
In the meanwhile, learned amicus curiae informs us that the
Under Trial Review Committee has been set up in every
District and a representative of the District Legal Services
Authority has been included in all the Under Trial Review
Committees and, therefore, to this extent the order dated 18th
September, 2015 has been complied with.
List the matter on 29th January, 2016. We make it clear that
learned counsel for the Union of India should be fully briefed
in all aspects of the case.”
45. In compliance with the order passed on 16th October, 2015
an affidavit dated 22nd January, 2016 was filed by the Ministry of
Home Affairs in which it was stated that a detailed evaluation of the
software for the e-Prisons Project had been completed and
guidelines had also been circulated to all the States for their
proposals and for exercising their option for selecting the
appropriate software.
46. It was stated in the affidavit that a provision for funds had
been made for the application software from the Crime and
Criminal Tracking Network & System (CCTNS) project and an
amount of Rs.227.01 crores had been approved for the
W.P. (C) No. 406 of 2013 Page 26 of 34implementation of the e-Prisons Project. It was stated that the
e-Prisons proposals had been received from seven States and other
States/Union Territories had been asked to expedite their proposal
for evaluation by the Ministry of Home Affairs.
47. With regard to the Model Prison Manual, it was stated that
the revised Model Prison Manual had been approved by the
competent authority and it was circulated to all States and Union
Territories. The revised manual also included a provision for a
suitable crèche for the children of women inmates in the prison.
48. With regard to the quarterly meetings of the Under Trial
Review Committee, the affidavit disclosed the dates on which such
Committees had met but on a perusal of the chart annexed to the
affidavit there is a clear indication that not every such Committee
met on a quarterly basis. This is most unfortunate.
49. With regard to the undertrial prisoners who could be
considered for release under the provisions of Section 436A of the
Cr.P.C., some progress had been made except in the States of
Assam, Bihar, Chhattisgarh, Goa, Karnataka, Meghalaya, West
Bengal, and the Union Territories of Dadra & Nagar Haveli and
Lakshadweep. It was stated in the affidavit that notwithstanding
the lack of detailed information it did appear that due to the
institutionalization of the exercise, the number of undertrial
W.P. (C) No. 406 of 2013 Page 27 of 34prisoners eligible for release under Section 436A of the Cr.P.C. had
been considerably reduced in some States.
50. In the hearing that took place on 29th January, 2016 it was
pointed out that considerable progress had been made inasmuch
as the Model Prison Manual had been finalized and perhaps
circulated to all the States and Union Territories; Under Trial
Review Committees had been set up in every district but
unfortunately many of such Committees were not meeting on a
regular basis every quarter; the application software for prison
management had more or less been identified but a final decision
was required to be taken in this regard; steps were required to be
taken for the release of undertrial prisoners particularly in the
State of Uttar Pradesh and the State of Maharashtra and wherever
necessary, the number of panel lawyers associated with the State
Legal Services Authority/District Legal Services Committee were
required to be increased to meet the requirement of early release of
undertrial prisoners and prisoners who remain in custody due to
their poverty and inability to furnish bail bonds. In addition, it was
pointed out that steps should be taken to ensure that wherever
persons are in custody under offences that are compoundable,
steps should be taken to compound the offences so that
overcrowding in jails is reduced.
W.P. (C) No. 406 of 2013 Page 28 of 3451. Has anything changed on the ground? The prison statistics
available as on 31st December, 2014 from the website of the NCRB7
indicate that as far as overcrowding is concerned, there is no
perceptible change and in fact the problem of overcrowding has
perhaps been accentuated with the passage of time. The figures in
this regard are as follows:
Central Jails District Jails
Capacity 1,52,312 1,35,439
Actual 1,84,386 1,79,695
% 121.1% 132.7%
Undertrials 95,519 (51.8%) 1,43,138 (79.7%)
52. The maximum overcrowding is in the jail in the Union
Territory of Dadra & Nagar Haveli (331.7%) followed by
Chhattisgarh (258.9%) and then Delhi (221.6%).
53. It is clear that in spite of several orders passed by this Court
from time to time in various petitions, for one reason or another,
the issue of overcrowding in jails continues to persist and apart
from anything else, appears to have persuaded Justice R.C Lahoti
to address a letter of the Chief Justice of India on this specific issue
of overcrowding in prisons.
54. We cannot forget that the International Covenant on Civil
and Political Rights, to which India is a signatory, provides in
Article 10 that: “All persons deprived of their liberty shall be treated
with humanity and with respect for the inherent dignity of the
7
http://ncrb.nic.in
W.P. (C) No. 406 of 2013 Page 29 of 34human person.” Similarly, Article 5 of the Universal Declaration of
Human Rights (UDHR) provides: “No one shall be subjected to
torture or cruel, inhuman or degrading treatment or punishment.”
With reference to the UDHR and the necessity of treating prisoners
with dignity and as human beings, Vivien Stern (now Baroness
Stern) says in A Sin Against the Future: Imprisonment in the World
as follows:
“Detained people are included because human rights extend to all human
beings. It is a basic tenet of international human rights law that nothing
can put a human being beyond the reach of certain human rights
protections. Some people may be less deserving than others. Some may
lose many of their rights through having been imprisoned through proper
and legal procedures. But the basic rights to life, health, fairness and
justice, humane treatment, dignity and protection from ill treatment or
torture remain. There is a minimum standard for the way a state treats
people, whoever they are. No one should fall below it.” 8
55. In a similar vein, it has been said, with a view to transform
prisons and prison culture:
“Treating prisoners not as objects, but as the human
beings they are, no matter how despicable their prior
actions, will demonstrate an unflagging commitment
to human dignity. It is that commitment to human
dignity that will, in the end, be the essential
underpinning of any endeavor to transform prison
cultures.”9
56. The sum and substance of the aforesaid discussion is that
prisoners, like all human beings, deserve to be treated with dignity.
8 Vivien Stern, A Sin Against the Future: Imprisonment in the World 192 (1998).
9 The Mess We’re In: Five Steps Towards the Transformation of Prison Cultures by Lynn
S. Branham, Indiana Law Review, Vol. 44, p. 703, 2011
W.P. (C) No. 406 of 2013 Page 30 of 34To give effect to this, some positive directions need to be issued by
this Court and these are as follows:
1. The Under Trial Review Committee in every district should
meet every quarter and the first such meeting should take
place on or before 31st March, 2016. The Secretary of the
District Legal Services Committee should attend each
meeting of the Under Trial Review Committee and follow
up the discussions with appropriate steps for the release
of undertrial prisoners and convicts who have undergone
their sentence or are entitled to release because of
remission granted to them.
2. The Under Trial Review Committee should specifically look
into aspects pertaining to effective implementation of
Section 436 of the Cr.P.C. and Section 436A of the Cr.P.C.
so that undertrial prisoners are released at the earliest
and those who cannot furnish bail bonds due to their
poverty are not subjected to incarceration only for that
reason. The Under Trial Review Committee will also look
into issue of implementation of the Probation of Offenders
Act, 1958 particularly with regard to first time offenders so
that they have a chance of being restored and
rehabilitated in society.
W.P. (C) No. 406 of 2013 Page 31 of 343. The Member Secretary of the State Legal Services
Authority of every State will ensure, in coordination with
the Secretary of the District Legal Services Committee in
every district, that an adequate number of competent
lawyers are empanelled to assist undertrial prisoners and
convicts, particularly the poor and indigent, and that legal
aid for the poor does not become poor legal aid.
4. The Secretary of the District Legal Services Committee will
also look into the issue of the release of undertrial
prisoners in compoundable offences, the effort being to
effectively explore the possibility of compounding offences
rather than requiring a trial to take place.
5. The Director General of Police/Inspector General of Police
in-charge of prisons should ensure that there is proper
and effective utilization of available funds so that the living
conditions of the prisoners is commensurate with human
dignity. This also includes the issue of their health,
hygiene, food, clothing, rehabilitation etc.
6. The Ministry of Home Affairs will ensure that the
Management Information System is in place at the earliest
in all the Central and District Jails as well as jails for
women so that there is better and effective management of
W.P. (C) No. 406 of 2013 Page 32 of 34the prison and prisoners.
7. The Ministry of Home Affairs will conduct an annual
review of the implementation of the Model Prison Manual
2016 for which considerable efforts have been made not
only by senior officers of the Ministry of Home Affairs but
also persons from civil society. The Model Prison Manual
2016 should not be reduced to yet another document that
might be reviewed only decades later, if at all. The annual
review will also take into consideration the need, if any, of
making changes therein.
8. The Under Trial Review Committee will also look into the
issues raised in the Model Prison Manual 2016 including
regular jail visits as suggested in the said Manual.
We direct accordingly.
57. A word about the Model Prison Manual is necessary. It is a
detailed document consisting of as many as 32 chapters that deal
with a variety of issues including custodial management, medical
care, education of prisoners, vocational training and skill
development programmes, legal aid, welfare of prisoners, after care
and rehabilitation, Board of Visitors, prison computerization and so
on and so forth. It is a composite document that needs to be
implemented with due seriousness and dispatch.
W.P. (C) No. 406 of 2013 Page 33 of 3458. Taking a cue from the efforts of the Ministry of Home Affairs
in preparing the Model Prison Manual, it appears advisable and
necessary to ensure that a similar manual is prepared in respect of
juveniles who are in custody either in Observation Homes or
Special Homes or Places of Safety in terms of the Juvenile Justice
(Care and Protection of Children) Act, 2015.
59. Accordingly, we issue notice to the Secretary, Ministry of
Women and Child Development, Government of India, returnable
on 14th March, 2016. The purpose of issuance of notice to the said
Ministry is to require a manual to be prepared by the said Ministry
that will take into consideration the living conditions and other
issues pertaining to juveniles who are in Observation Homes or
Special Homes or Places of Safety in terms of the Juvenile Justice
(Care and Protection of Children) Act, 2015.
60. The remaining issues raised before us particularly those
relating to unnatural deaths in jails, inadequacy of staff and
training of staff will be considered on the next date of hearing.
..……………………..J
(Madan B. Lokur)
………………………J
New Delhi; (R.K. Agrawal)
February 5, 2016
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