Prisons' Right, Volume 2

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Prisons' Right, Volume 2

Published by Human Rights Law Network(HRLN), a division of Socio Legal Information Centre(SLIC). For more details about our works, visit us at http://hrln.org

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Prisons' Right, Volume 2

  1. 1. Volume II PRISONERS’ RIGHTS This Volume of Prisoners’ Rights comes after a decade and at a time when serious attempts are being made by governments to change the entire criminal justice system with the sole aim that every arrested person should be guilty. These changes in the criminal law are being brought on the pretext of fighting terrorism and to deliver justice to victims. Yet rules of free and fair trial and the basic time tested principles of criminal law are being tampered with and torturous procedures such as the Narco Analysis test and brain mapping are being resorted to without any scientific credibility to those tests. The system of video conferencing for the production of accused in court has been introduced in the various parts of the country. In some states even criminal trials are being conducted through video conferencing. Recently, the government has introduced the ‘Fast Track Court’ across the country for speedy disposal of criminal trials. Many times criminal trials have been completed in matter of days. This is a dangerous trend. The country has also witnessed media frenzy over criminal cases and has held trials almost through the electronic and the print media. Several bar association passed resolutions appealing to its members to defend the accused in the trial in certain cases. The constitutional right of an accused to be represented by an advocate is ignored. Justice for the victim does not mean the basic principles of criminal justice should be ignored. The thin dividing line between the media campaign and media trial is often breached in number of cases. Armed Forces Special Powers Act, one of the most draconian legislations, continues to imposed on the northeastern states of the country and citizens continue to be tortured and killed in the name of insurgency without any proper investigation or enquiry into this killings. The last decade also saw a huge increase in extra-judicial killings. The prisons in the country continue to be populated with mainly under trials who are poor, literate and also form minority or fringe groups. Nothing much has changed vis-à-vis the conditions of prisons and prisoners’ rights since the last Volume of the Prisoners’ Rights book. ISBN 81-89479-77-6 9 788189 479770 576, Masjid Road, Jangpura, New Delhi – 110014, India, Ph: +91-11-24379855/56, E-mail: publications@hrln.org PRISONERS’ RIGHTS Volume II
  2. 2. PRISONERS' RIGHTS VOLUME II Human Rights Law Network New Delhi December 2011
  3. 3. Human Rights Law Network Vision n protect fundamental human rights, increase access to basic resources for the To marginalised communities, and eliminate discrimination. n create a justice delivery system that is accessible, accountable, transparent, efficient To and affordable, and works for the underprivileged. Raise the level of pro bono legal expertise for the poor to make the work uniformly competent as well as compassionate. n Professionally train a new generation of public interest lawyers and paralegals who are comfortable in the world of law as well as in social movements, and who learn from social movements to refine legal concepts and strategies. PRISONERS' RIGHTS VOLUME II December 2011 © Socio Legal Information Centre* ISBN: 81-89479-77-6 Compilation and text editing: Monica Sakhrani, Annie Fernandes, Sr Suma Jose SD, Ritu Kumar, Sukrit Kapoor Design: Birendra K Gupta Printed at: Shivam Sundaram, E-9, Green Park Extn. New Delhi Published by: Human Rights Law Network (HRLN) (A division of Socio Legal Information Centre) 576, Masjid Road, Jangpura, New Delhi – 110014, India Ph: +91-11-24379855/56 E-mail: publications@hrln.org Supported by: European Union Dan Church Aid Irish Aid Disclaimer T he views and opinions expressed in this publication are not necessarily views of the HRLN. Every effort has been made to avoid errors, omissions, and inaccuracies. However, for inadvertent errors or discrepancies that may remain nonetheless, the HRLN takes the sole responsibility. * ny section of this volume may be reproduced without prior permission of the Human Rights A Law Network for public interest purposes with appropriate acknowledgement.
  4. 4. Acknowledgements The Human Rights Law Network – HRLN would like to extend heartiest thanks to Sukrit Kapoor, a graduate of Gujarat National Law University for compilation, case summaries and for the Introduction and Conclusion of the chapters. The organisation would like to acknowledge Aviral Chauhan, Shreyasi Chakraborthy, Saksham Marwah, Sooraj and Anirudh Soman, students of Gujarat National Law University and Arpit Jain, ILS, Pune for the research on case laws. HRLN would also like to acknowledge Smriti Minocha for coordinating with the persons engaged in this book project and Advocate Ritu Kumar for doing the final text editing. The organisation would like to thank Monica Sakhrani and Annie Fernandes for compiling and editing parts of the volume.
  5. 5. Contents Acknowledgements ...........................................................................................................iii General Introduction ........................................................................................................xv COMPENSATION Introduction....................................................................................................................... 2 Supreme Court AIR 1983 SC 1086 Rudul Sah vs State of Bihar and Another........................................................................... 7 Supreme Court AIR 1984 SC 1026 Sebastian M. Hongray vs Union of India and Others ....................................................... 12 Supreme Court of India AIR 1986 SC 494 Bhim Singh, MLA vs State of Jammu Kashmir .............................................................. 16 Supreme Court of India AIR 1987 SC 355 Peoples’ Union of Democratic Rights vs State of Bihar ................................................... 24 Supreme Court of India 1989 (4) SCC 730 People's Union for Democratic Rights and Another vs Police Commissioner, Delhi Police and Another .............................................................. 27 Supreme Court of India AIR 1990 SC 513 Saheli, A Women’s Resource Centre, Through Ms. Nalini Bhanot and Others vs Commissioner of Police, Delhi and Others ...................................................................... 28 Delhi High Court 1992 Cri. LJ 128 P. V. Kapoor and another vs Union of India ..................................................................... 34 Supreme Court of India 1993 (2) SCC 746 Smt. Nilabati Behera alias Lalita Behera vs State of Orissa and Others ........................... 56
  6. 6. vi PRISONERS' RIGHTS VOLUME II Supreme Court of India JT 1994 (6) SC 478 Arvinder Singh Bagga vs State of Uttar Pradesh and Others ........................................... 74 Andhra Pradesh High Court 1994 Cri. LJ 1469 Prof. S. Seshaiah vs State of Andhra Pradesh and Another ............................................. 77 Gauhati High Court 1995 Cri. LJ 347 Nagatangkhui vs State of Nagaland and Others .............................................................. 78 Supreme Court of India 1995 (SU4) SCC 450 In Re:death of Sawinder Singh Grover............................................................................. 84 Supreme Court of India 1995 Cri. LJ 2920 Smt. Kewal Pati vs State of Uttar Pradesh and Others ..................................................... 86 Supreme Court of India 1997 (7) SCC 725 Postsangbam Ningol Thokchom (Smt) and Another vs General Officer Commanding and Others ....................................................................... 88 Supreme Court of India 1998 (9) SCC 351 Malkiat Singh vs State of Uttar Pradesh .......................................................................... 90 Supreme Court of India 1999 (6) SCC 754 Kaushalya and Another vs State of Punjab and Others ................................................... 92 Jharkhand High Court 2001 Cri. LJ 3573 Mrs. Meena Singh, Petitioner vs State of Bihar and others, Respondents. ..................... 93 Bombay High Court 2004 ALL MR (Cri) 636 Prem Bangar Swamy vs State of Maharashtra Others ................................................. 95 Supreme Court of India AIR, 2000 SC 2083 State of AP vs Challa Ramkrisha Reddy ......................................................................... 105 Supreme Court 1991 (2) SCC 373 State of Maharashtra and Others vs Ravikant S. Patil .................................................. 115 Conclusion ..................................................................................................................... 117 FAIR PROCEDURE Introduction................................................................................................................... 120 High Court of Karnataka 1975 Cri. LJ 335 Abdul Azeez vs The State of Mysore.............................................................................. 123
  7. 7. CONTENTS Supreme Court of India AIR 1995 (SC) 980 Shivappa vs State of Karnataka ..................................................................................... 126 High Court of Bombay 1993 Mah. LJ 1529 Saraswati Mahadeo Jadyal vs State of Maharashtra ..................................................... 132 Bombay High Court 1993 Cri LJ 2984 State of Maharashtra vs Dr. B.K. Subbarao and another .............................................. 142 Supreme Court of India 2009 (7) SCC 104 (1) Jayendra Vishnu Thakur vs State of Maharahstra and Another .................................... 172 Supreme Court of India AIR 2000 SC 3203 Dadu @ Tulsidas vs State of Maharashtra ..................................................................... 175 Supreme Court of India AIR 2009 SC 628 Deepak Bajaj vs State of Maharashtra and Another...................................................... 181 Supreme Court of India 2009 (12) SCR 1093 Mohd. Farooq Abdul Gafur and Another vs State of Maharashtra AND State of Maharashtra vs Mohd. Zuber Kasam Sheikh and Others ................................. 186 Conclusion ..................................................................................................................... 194 HUMANE SENTENCING Introduction................................................................................................................... 196 Supreme Court of India 1977 (3) SCC 287 Mohammad Giasuddin vs State of Andhra Pradesh ...................................................... 202 Supreme Court of India AIR 1985 SC 1050 Bhagirath vs Delhi Administration ................................................................................. 211 Bombay High Court 1993 Mah. LJ 1425 Bhupesh Ramchandra More vs State of Maharashtra ................................................... 218 Supreme Court of India 1994 (3) SCC 430 Dr. Jacob George vs State of Kerala ............................................................................... 224 Supreme Court of India 1995 (6) SCC 593 Baldev Singh Another vs State of Punjab .................................................................. 230 Supreme Court of India 1999 (7) SCC 355 State of Haryana vs Balwan ........................................................................................... 233 vii
  8. 8. viii PRISONERS' RIGHTS VOLUME II Supreme Court of India 1999 (8) SCC 375 Union of India and Others vs Sadha Singh..................................................................... 236 Supreme Court of India 2001 Cri. LJ 2588 State of Maharastra vs Najakat alias Mubarak Ali ......................................................... 239 Supreme Court of India 2000 (7) SCC 626 Laxman Naskar (Life Convict) vs State of West Bengal and Another ............................. 243 Supreme Court of India 2001 (3) SCC 750 Zahid Hussein and Others vs State of West Bengal ....................................................... 247 Supreme Court of India 2003 (3) SCC 1 State of Madhya Pradesh and Another vs Bhola @ Bhairon Prasad Raghuvanshi ........ 251 Supreme Court of India 1976 (4) SCC 190 Santa Singh vs State of Punjab ...................................................................................... 258 Supreme Court of India 1980 (2) SCC 604 Bachan Singh vs State of Punjab.................................................................................... 263 Supreme Court of India AIR 1983 SC 473 Mithu Singh vs State of Punjab...................................................................................... 267 Supreme Court of India Rajendra Prasad vs State of Uttar Pradesh .................................................................... 282 Supreme Court Cases 1977 (4) SCC 44 Hiralal Mallick vs State of Bihar .................................................................................... 285 Supreme Court of India 1994 (3) SCC 394 P. Rathinam vs Union of India ........................................................................................ 292 Conclusion ..................................................................................................................... 323 JUVENILE PRISONERS Introduction................................................................................................................... 326 Supreme Court of India AIR 1988 SC 414 Sanjay Suri and Another vs Delhi Administration, Delhi and Another........................... 331 Patna High Court AIR 1989 Patna LJR 1024 Sanat Kumar Sinha vs State of Bihar and Others ........................................................... 337
  9. 9. CONTENTS Patna High Court 1990 BBCJ 357 Sanat Kumar Sinha vs The State of Bihar through Chief Secretary and Others .. 340 Supreme Court of India AIR 1982 SC 1297 Jaya Mala vs Home Secretary, Government of Jammu and Kashmir and Others .......... 352 Kerala High Court 1993 (3) Cri. 57 Cri. Reference no. 3 of 1991 .......................................................................................... 356 Supreme Court of India 1997 (8) SCC 720 Bhola Bhagat and Another vs State of Bihar ................................................................. 363 Supreme Court of India 1998 (5) SCC 697 Santenu Mitra vs State of W.B. ...................................................................................... 366 Supreme Court of India 2000 (6) SCC 89 Umesh Singh and Another vs State of Bihar .................................................................. 368 Supreme Court of India 1982 (3) SCR 583 Umesh Chandra vs State of Rajasthan ........................................................................... 370 Supreme Court of India 2001 (7) SCC 657 Arnit Das vs State of Bihar ............................................................................................. 378 Supreme Court of India 2005 (3) SCC 551 Pratap Singh vs State of Jharkhnad and Another .......................................................... 380 Supreme Court of India 2002 (2) SCC 287 Rajinder Chandra vs State of Chhattisgarh and Another ............................................... 389 Supreme Court of India 2008 (13) SCALE 137 Babloo Pasi vs State of Jharkhand and Another ............................................................ 391 Supreme Court of India 2009 (6) SCALE 695 Hari Ram vs State of Rajasthan and Another ................................................................ 394 Conclusion ..................................................................................................................... 402 PAROLE AND FURLOUGH Introduction................................................................................................................... 404 Supreme Court 2000 (3) SCC 409 Sunil Fulchand Shah vs Union of India and Others ........................................................ 407 ix
  10. 10. x PRISONERS' RIGHTS VOLUME II Supreme Court 2000 (3) SCC 394 State of Haryana vs Mohinder Singh ............................................................................. 409 Supreme Court 2002 (3) SCC 18 Avtar Singh vs State of Haryana and Another ............................................................... 415 Supreme Court 2000 (3) SCC 514 State of Haryana vs Nauratta Singh and Others ............................................................ 418 Supreme Court 2001 (8) SCC 306 Joginder Singh vs State of Punjab and Others ............................................................... 424 Bombay High Court 1989 Cri LJ 681 Sharad Keshav Mehta vs State of Maharashtra and Others .......................................... 429 Conclusion ..................................................................................................................... 431 PRESS Introduction................................................................................................................... 434 Supreme Court of India AIR 1982 SC 6 Smt. Prabha Dutt vs Union of India and Others............................................................. 435 Supreme Court of India 1988 (I) Bom. Cr 58 Sheela Barse vs State of Maharashtra..................................................................................................... 438 Supreme Court of India 1999 Cri. LJ 2273 State through Superintendent Central Jail, N. Delhi vs Charulata Joshi and Another ... 443 Conclusion ..................................................................................................................... 445 PRISON FACILITIES Introduction................................................................................................................... 448 Bombay High Court 1987 Mah. LJ 68 Madhukar Bhagwan Jambhale vs State of Maharashtra and Others ............................ 455 Madhya Pradesh High Court [1988 (16) Reports M.P. 147] Ranchod vs State of M.P. and Others ............................................................................ 465 Bombay High Court 1989 Mah LJ 77 Inacio Manuel Miranda and Others vs State ................................................................. 475
  11. 11. CONTENTS High Court of Kerala AIR 1983 Ker 261 In the Matter of: Prison Reforms Enhancement of Wages of Prisoners O.P. Nos. 6566 and 7472 of 1982 Section D/- 13.4.1983............................................... 481 High Court of Himachal Pradesh AIR 1992 HP 70 Gurdev Singh and Others etc. vs State of Himachal Pradesh and Others ...................... 497 Supreme Court of India AIR 1966 SC 424 State of Maharashtra vs Prabhakar Pandurang Sangzgiri and Another ......................... 517 Kerala High Court AIR 1973 Ker 97 Kunnikkal Narayanan vs State of Kerala and Another ................................................... 521 Bombay High Court AIR 1967 SC 254 M.A. Khan vs State and Another ................................................................................... 525 Supreme Court of India AIR 1981 SC 746 Francis Coralie Mullin vs The Administrator, Union Territory of Delhi and Others ........ 534 Supreme Court of India AIR 2006 SC 1946 R.D. Upadhyay vs State of Andhra Pradesh and Others ................................................ 545 Supreme Court of India AIR 2004 SC 2223 State of Maharashtra and Others vs Asha Arun Gawali and Another ........................... 556 Mumbai High Court 2004 Cri LJ 4312 Asgar Yusuf Mukadam and Others vs State of Maharashtra and the Suprintendent of Prison .......................................................................................... 561 Supreme Court of India AIR 1997 SC 1739 Rama Murthy vs State of Karnataka .............................................................................. 565 Supreme Court of India AIR 1998 SC 3164 State of Gujarat and Another vs Hon’ble High Court of Gujarat ................................... 572 Conclusion ..................................................................................................................... 577 SECURITY LEGISLATION Introduction................................................................................................................... 580 Supreme Court of India 1987 (1) SCC 533 Balbir Singh vs State of Haryana .................................................................................... 591 xi
  12. 12. xii PRISONERS' RIGHTS VOLUME II Bombay High Court 1994 Mah. LJ 1743 Anil Vasant Chitnis and Others vs Senior Inspector of Police Alibaug Police Station, Raigad and Others..................................................................... 596 Supreme Court of India 1994 (3) SCC 569 Kartar Singh vs State of Punjab ..................................................................................... 603 Supreme Court of India 1994 (4) SCC 602 Hitendra Vishnu Thakur vs State of Maharashtra .......................................................... 653 Supreme Court of India 1995 Cri LJ 477 Sanjay Dutt vs State Through C.B.I., Bombay ................................................................ 673 Supreme Court of India 1998 (4) SCC 492 Khudeswar Dutta vs State of Assam .............................................................................. 699 Supreme Court of India 2001 Cri. LJ 3294 Vijay Pal Singh vs State, N.C.T. of Delhi .......................................................................... 701 Supreme Court of India 1995 (6) SCC 447 Bonkya Alias Bharat Shivaji Mane and Others vs State of Maharashtra ........................ 704 Supreme Court of India 1999 (5) SCC 682 Balbir Singh and Another vs State of Uttar Pradesh ...................................................... 708 Supreme Court of India 1999 (2) SCC 45 Kishore Prabhakar Sawant and Others vs State of Maharashtra ................................... 709 Supreme Court of India 1997 (4) SCC 156 Paramjit Singh and Others vs State of Punjab and Others ............................................ 712 Supreme Court of India 2000 (4) SCC 454 Sagayam vs State of Karnataka ...................................................................................... 716 Supreme Court of India 2003 (4) SCALE 428 Yusuf @ Babu Khan vs State of Rajasthan ..................................................................... 719 Supreme Court of India 2003 (6) SCC 641 State vs Navjot Sandhu .................................................................................................. 721 Supreme Court of India 2003 (8) SCC 50 State of Gujarat vs Salimbhai Abdul Gaffar Shaikh and Others ..................................... 727
  13. 13. CONTENTS Supreme Court of India 1995 (1) SCC 684 State of West Bengal and Another vs Mohammed Khalid and Others .......................... 732 Supreme Court of India AIR 1996 SC 2047 R.M. Tewari, Advocate vs State (NCT of Delhi) and Others AND Govt. of N.C.T., Delhi vs Judge, Designated Court II (TADA) AND Mohd. Mehfooz vs Chief Secretary and Another .......................................................... 744 Supreme Court of India 1997 (7) SCC 744 Rambhai Nathabhai Gadhvi and Others vs State of Gujarat.......................................... 749 Supreme Court of India 1996 Cri. LJ 1986 Writ Petn. (CRI.) No. 117 of 1995 D/- 27-2-1996 AND Shaheen Welfare Association vs Union of India and Others ......................................... 753 Supreme Court of India 2001 (3) SCC 221 Lal Singh vs State of Gujarat and Another ..................................................................... 760 Supreme Court of India 1999 (5) SCC 253 T. Suthenthiraraja, P. Ravichandran, Robert Payas Others vs State by DSP, CBI, SIT, Chennai ...................................................................................... 772 Supreme Court of India 2000 ( 1 ) SCC 498 Gurdeep Singh Alias Deep vs State (Delhi Admn.)......................................................... 805 Supreme Court of India AIR 2002 SC 1661 Devender Pal Singh vs State, N.C.T of Delhi and Another .............................................. 809 Supreme Court of India 1997 (8) SCC 732 Kalpnath Rai vs State (Through CBI) .............................................................................. 822 Supreme Court of India 1997 (7) SCC 231 Sahib Singh vs State of Haryana .................................................................................... 830 Supreme Court of India 1998 (7) SCC 337 Suresh Budharmal Kalani Alias Pappu Kalani vs State of Maharashtra.......................... 836 Supreme Court of India 2000 (2) SCC 254 S.N. Dube vs N.B. Bhoir and Others............................................................................... 840 Supreme Court of India AIR 2004 SC 588 Jameel Ahmed Another vs State of Rajasthan ........................................................... 854 xiii
  14. 14. xiv PRISONERS' RIGHTS VOLUME II Supreme Court of India 2004 (9) SCC 580 People’s Union for Civil Liberties Another vs Union of India ..................................... 863 Supreme Court of India 1998 (2) SCC 109 Naga People’s Movement of Human Rights and Others vs Union of India.................... 889 Conclusion ..................................................................................................................... 920 WOMEN Introduction................................................................................................................... 924 Supreme Court of India 1983 (2) SCC 96 Sheela Barse vs State of Maharashtra ........................................................................... 928 Supreme Court of India AIR 1990 SC 658 State of Maharashtra vs Chandraprakash Kewal Chand Jain AND Stree Atyachar Virodhi Parishad, Maharashtra State vs Chandraprakash Kewalchand Jain, Police Sub-Inspector, Nagpur and Another ............ 935 Bombay High Court 1995 (4) Bom. CR 263 Rekha M. Kholkar vs State of Goa and Others .............................................................. 951 Bombay High Court 1996 (1) Bom. CR 70 Christian Community Welfare Council of India (Regd.) vs Government of Maharashtra and Another ................................................................... 956 Supreme Court of India AIR 2006 SC 1946 R.D. Upadhyay vs State of A.P. and Others .................................................................... 970 Supreme Court of India 2003 (8) SCC 546 State of Maharashtra vs Christian Community Welfare Council of India and Another . 989 Andhra Pradesh High Court 2003 (1) ALT 221 The Legal Aid Committee, High Court of A.P. vs The Director General and Inspector General of Prisons and Others ............................. 993 High Court of Jammu and Kashmir AIR 2004 JK 6 World Human Rights Protection vs Union of India (UOI) and Others .......................... 1001 Conclusion ................................................................................................................... 1010
  15. 15. General Introduction The second edition of Prisoners Rights: a compilation of landmark judgements comes after a decade since its first edition and at a time when serious attempts are being made by governments to change the entire criminal justice system with the sole aim that every arrested person should be guilty. These changes in the criminal law are being brought on the pretext of fighting terrorism and to deliver justice to victims. Yet rules of free and fair trial and the basic time tested principles of criminal law are being tampered with and torturous procedures such as the Narco Analysis test and brain mapping are being resorted to without any scientific credibility to those tests. The system of video conferencing for the production of accused in court has been introduced in the various parts of the country. In some states even criminal trials are being conducted through video conferencing. The system of production and trial through video conferencing is full of flaws. The trial conducted not via video conferencing cannot be termed as a free and fair trial with prisoner being in jail where he can be deemed to be free to give instructions to his lawyer. Besides he might be under duress where he may not be able to communicate with the courts freely. The visits to the courts once a fortnight, or a month, are the only times a prisoner can meet his family members. Considering the faulty prison visitation system, the visit to the court by the prisoners is very important as it provides the only chance to meet his family members and speak to them. Recently the government has introduced the ‘Fast Track Court’ across the country for speedy disposal of criminal trials. Many times criminal trials have been completed in matter of days. This is a dangerous trend as from delayed trials at one point of time, the system is now moving towards ultra quick trial where the notion of justice may be forgotten for the sake of speed. The Bombay High Court while hearing an appeal from one of the ‘Fast Track Courts’ came down lightly on the functioning of these courts and stated that, ‘We are certainly of the view that though the ‘Fast Track Courts’ should act fast and justice should be delivered as quickly as possible, decision of a criminal trial cannot be speedily given at the cost of justice.
  16. 16. xvi PRISONERS' RIGHTS VOLUME II In last couple of years the country has only witnessed media frenzy over criminal cases and has held trials almost through the electronic and the print media. Several bar associations passed resolutions appealing to its members to defend the accused in the trial in certain cases. The constitutional right of an accused to be represented by an advocate is ignored. Justice for the victim does not mean the basic principles of criminal justice should be ignored. The thin dividing line between the media campaign and media trial is often breached in number of cases. The Malimath Committee, which was formed for the reforms in the criminal justice system, tried its best to dismantle the minimum protection given to the accused during trials and tried to bring in draconian provisions in the mainstream criminal law. Though the Malimath Committee Report was rejected by the government, efforts are afoot to give it a backdoor entry through the committee formed to draft the criminal policy of the country. The attack on the Parliament ensured Terrorist and Disruptive Activities (Prevention) Act smooth passing of the Prevention of Terrorism Act (POTA). The draconian provision of the earlier TADA were not incorporated in POTA and but there have been reports of its widespread misuse across the country. The Act was ultimately repealed under sustained pressure from the groups fighting civil liberties and human rights but the amendment to the Unlawful Activities Act, resulted in incorporation of some of this provisions. Today almost every state in the country has its own anti terror law and the anti-organised crime act. All these acts have basically draconian provisions, enacted to strengthen the hands of the police and see that convictions happen on a very little, or flimsy evidence, or no evidence worth the name. Armed Forces Special Powers Act, one of the most draconian legislations, continues to be imposed on the north eastern states of the country and citizens continue to be tortured and killed in the name of insurgency without any proper investigation or enquiry into these killings. The last decade also saw a huge increase in extra judicial killings. Apart from a few convictions in the cases of custodial violence and the encounter killings many extra judicial killings went unnoticed and unquestioned. In the beginning of the decade courts were initiated across the country for the speedy delivery of justice and disposal of justice. The jail courts were mainly handing out convictions to the accused who were pleading guilty. Many times the accused understanding the
  17. 17. GENERAL INTRODUCTION consequence of a conviction use to plead guilty only to avoid prolonged cases which took years to finish owing to non production of prisoners in courts. The prisons in the country continue to be populated with mainly under trials who are poor, illiterate and also form minority or fringe groups. These prisons around the country are over crowded with basic amenities like clean drinking water and essential medical facilities missing. The legal aid system remains in shambles resulting in the denial of the basic right of free and fair trial to the poor prisoners. The much hyped Criminal Law Amendment 2005, which the government authorities claimed will almost empty the prisons across the country, has not brought in any major changes vis-à-vis the prison population as was claimed by the Government. Lakhs of people continue to languish behind bars mainly because they are poor. Nothing much has changed vis-à-vis the conditions of prisons and prisoners rights since the last edition of the Prisoners Rights Book. There have been few landmark judgements but the implementation of the judgements seems to be a distant possibility. The Mulla Committee report on jail report came out in the early 1980’s but it has not been implemented until this day though over two decades have elapsed since the report was submitted to the government. The visitation rights of the prisoners leave much to be desired where the whims and fancies of the jail administration matter most. Prisoners continue to get food which can hardly be termed as fit for human consumption and they continue to live under most unhygienic or even hazardous conditions. On the other hand there are instances of prisoners who have stayed in prison for many years beyond their sentence period. The overall conditions of the prisons and the prisoners show that they are the most ignored section of people in this country. The need of the hour is to move towards a genuine reformative system. Changing the name of prisons as ‘Reformation Centres’ is not going to help as these are just superficial changes and do not in actual terms bring in any reform in the prison and the life of the prisoners. It is high time the voting rights and the conjugal rights of the prisoners in India are recognized. Though in prison it should not be forgotten the prisoner still has the right to live with dignity. This book is divided in two volumes where best efforts have been made to bring in under its covers all the landmark judgements regarding prisons and prisoners passed by courts until this day, or the year 2007, in the fervent hope that it serves as a resource material for lawyers, activists and conscientious citizens and civil society groups. xvii
  18. 18. COMPENSATION
  19. 19. 2 PRISONERS' RIGHTS VOLUME II Introduction The Supreme Court of India has advanced the Right to Compensation to prisoners by declaring it to be a fundamental right under Article 21 of the Constitution of India. Hence a prisoner can approach the Supreme Court under Article 32 and claim for compensation for the violation of his rights while in custody of the police or a prison setting. The aspect of compensation to prisoners was acknowledged and introduced world over by the International Covenant on Civil and Political Rights in 1976. The two principles laid down in the covenant are as follows: [I] Article 9, Clause 5 states: “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” [II] Article 14, Clause 6 states: “When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.” The right to compensation further extends to a prisoner if he/she is subjected to unlawful treatment and abuse in any form in the prison. The right extends to undertrials, detainees and other prisoners in custody. The case-laws presented in this chapter highlight the circumstances under which prisoners have been and can be granted compensation. In Rudul Sah’s case (AIR 1983 SC 1086), the petitioner was released from Tihar jail 14 years after he was acquitted. The excuse was insanity. The Court noted that no data of any kind was produced to show that the prison authorities had a basis for either declaring the prisoner insane or for detaining him on that account. No measures were taken to cure him. Insanity was clearly alleged as an after thought. The Court observed that if a prisoner was at all insane, it must have been caused by the jail conditions itself. It was shocking that such a case should emerge after the Bhagalpur blinding case. The said case was widely reported all over the world and brought the entire prison system of Bihar into disrepute. It appears that such publicity had no effect on the criminals who run our prison systems.
  20. 20. COMPENSATION The Supreme Court directed the High Court to call for statistical data from the Home Department in respect of the number of convicts who have been in jail for periods in excess of 10, 12, and 14 years respectively. The interesting part of the judgment relates to compensation. The Court granted compensation of Rs. 35,000/- as a palliative to the petitioner and specifically indicated that a suit for compensation over and above this amount would lie in an appropriate Court. Article 21 will be denuded of its significant content if the powers of the Court were limited to passing orders merely of release. One way in which due compliance with the mandate of Article 21 is secured is to mulct its violators in the payment of monetary compensation. It cannot be corrected by any other method. Interestingly for 14 years of illegal custody the poor prisoner was given compensation of only Rs. 35,000/. Why not 35 lacs? Would not the latter amount be more appropriate for such a violation of the Fundamental Rights of a citizen of India? Sebastian Hongray’s case (AIR 1984 SC 1026) was a habeas corpus petition. Sebastian was a Naga Priest who was a Head Master of a school. His school was visited by the army. There the army engaged in certain atrocities and took away certain persons including the petitioner. He was last seen alive in an army camp. A petition for habeas corpus was filed, but the State refused to obey. The Court asked “What is the appropriate mode of enforcing obedience to a writ of habeas corpus?”. Here there was a wilful disobedience of the writ by misleading the Court and by presenting a distorted version of facts. It was a case of civil contempt. In a landmark judgment the Court ordered that the State pay Rs. 1 lac each to the wives of the missing persons. Reiterating the principle laid down in the earlier decisions, the Supreme Court awarded compensation of Rs. 50,000/- in Bhim Singh’s case (AIR 1986 SC 494), for imprisonment with “mischievous or malicious intent”, where an MLA was kept in police custody and remand orders were obtained without his production before a magistrate. In Peoples’ Union of Democratic Rights vs. State of Bihar (AIR 1987 SC 355), the Supreme Court enhanced the amount of compensation from Rs. 10,000/- to Rs. 20,000/- to be paid to the 21 persons belonging to backward classes who died in indiscriminate firing by the police while holding a peaceful meeting in the District of Gaya, Bihar, and Rs. 5000/each to the persons injured. The Court held that payment of such compensation does not absolve the liability of the wrong-doer but such compensation is being paid as a working principle and for convenience and with a view to rehabilitating the dependants of the deceased. 3
  21. 21. 4 PRISONERS' RIGHTS VOLUME II In Peoples’ Union of Democratic Rights and another vs. Police Commissioner, Delhi Police and another (1989 (4) SCC 730), the Supreme Court directed the payment of Rs. 50,000/to the family of the person killed by the police officers at the police station for demanding payment for their labour. A woman who was stripped was paid Rs. 500/- and Rs. 25/- to eight others. The amount was ordered to be recovered from the salaries of the officers found guilty after investigation and inquiry. In Saheli, A Women’s Resource Centre Vs. Commissioner of Police, Delhi (AIR 1990 SC 513), the Supreme Court directed that compensation be paid to the mother of a nine year old child who died because of beating and assault by a police officer. In P.V. Kapoor’s case (1992 Cri. LJ 128), the Delhi High Court, extending the principle laid down in Nilabati Behera’s case, awarded compensation to the victims of police firing on the illegal assemblies during the Mandal agitation. The law regarding strict liability of the State for violation of fundamental rights to which the defence of sovereign immunity is not applicable was laid down by the Supreme Court in Nilabati Behera’s case (JT 1993 (2) SC 503). In this case where compensation was awarded to the mother of a victim of custodial death, the Supreme Court expressed the need of the Court “to evolve ‘new tools’ to give relief in public law by moulding it accordingly to the situation with a view to preserve protect the rule of law.” The Supreme Court in Arvinder Singh Bagga’s case (JT 1994 (6) SC 478), directed that the state pay compensation to persons illegally detained and directed prosecution of the concerned police officers for the “blatant abuse of law”. The Andhra Pradesh High Court also awarded compensation in case of illegal detention and quashed the prosecution pending against the detenu filed subsequently as being an abuse of the process of Court in S. Seshaiah vs. State of Andhra Pradesh (1994 Cri. LJ 1469). The Gauhati High Court awarded compensation to the father of deceased against whom no case had been registered in Nagantangkhui’s case (1995 Cri. LJ 347). In Re: death of Sawinder Singh Grover (1995 (SU4) SCC 450), the Supreme Court directed that a sum of Rs. two lakhs be paid as an interim measure by the Union of India/ Directorate of Enforcement to the widow of the deceased. This direction was based on the report of the Additional Sessions Judge which suggested a strong suspicion of some misfeasance including torture by the officers of the Directorate who had wrongfully confined the deceased. The Central Bureau of Investigation was asked to conduct the prosecution and further investigation in the matter.
  22. 22. COMPENSATION In Smt. Kewal Pati’s case (1995 Cri LJ 2920), the Supreme Court held that the legal heirs of deceased are entitled to compensation from the State if a prisoner is killed in jail by a co-accused. The facts of the case in Postsangbam Ningol Thokchom (Smt) and another vs. General Officer Commanding and others (1997 (7) SCC 725) being similar to that of the Nilabati Behera’s case, the Supreme Court directed the Union of India to deposit an amount of Rs. 1,25,000 in the names of the mothers of the two boys who were not released from custody after being picked up for interrogation by the Army in Imphal, and were suspected to be killed. In another similar case, Kaushalya and another vs. State of Punjab and Others (1999 (6) SCC 754), the Supreme Court awarded a sum of Rs. 2 lakhs to the mother of the deceased Amrik Singh who was killed in police custody. In Malkiat Singh vs. State of Uttar Pradesh (1989 (9) SCC 351), the Supreme Court awarded a compensation of Rs. five lakhs to the father whose son was killed in an alleged encounter between the police and four sikh youths. The compensation was made based on a similar case, Writ Petition No. 632 of 1992, where the Supreme Court had awarded Rs. 5 lakhs as compensation. In Mrs. Meena Singh vs. State of Bihar and others (2001 Cri. LJ 3573), the High Court of Jharkhand awarded a compensation of Rs. 3 lakhs to the wife of an undertrial prisoner, noting that it was the prime duty of the jail authority to provide security and safety to the life of prisoners while in jail custody. The order was passed based on the principle expounded in Smt. Kewalpati’s case. In Prem Bangar Swamy vs. State of Maharashtra and Others (2004 ALL MR (Cri) 636), the High Court of Bombay awarded an amount of Rs. 2 lakhs as compensation for wrongful detention of the petitioner for 2 years 9 months inspite of her acquittal by the Special Court in Mumbai and that order being confirmed in appeal by the High Court. The High Court referred to the apex court judgements in Rudal Sah and D.K. Basu’s cases for illegal detention, while deciding the amount which was awarded as an interim measure noting that the same was not a punitive compensation. State of Andhra Pradesh vs. Challa Ramkrishna Reddy and Others (AIR 2000 SC 2083) was filed against the order of the High Court whereby a sum of Rs. 1,44,000/- was awarded to the son whose father died while in custody for the negligence of the authorities. The case was challenged on two grounds, as being barred due to limitation and that the State would not be liable in damages as it was immune from any legal action in respect of its 5
  23. 23. 6 PRISONERS' RIGHTS VOLUME II sovereign acts. The Supreme Court held that the present case would invoke the provisions of Article 113 and not Article 72 of the Limitation Act, 1963 which prescribed a period of three years, as the action of the officers was wholly malafide, and thus the suit was within limitation. With regards to the second plea relating to the immunity of the State Government, the Court relied on various judgements on deciding the issue of a person being deprived of his personal liberty (Article 21) in accordance with the procedure established by law, and that the same must be reasonable, fair and just as laid down in Maneka Gandhi vs. Union of India (1978 (1) SCC 248), D. Bhuvan Mohan Patnaik vs. State of Andhra Pradesh (AIR 1074 SC 2092), Charles Sobhraj vs. Superintendent, Central Jail, Tihar (AIR 1978 SC 1514), Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi (1981 (1) SCC 608), Sunil Batra vs. Delhi Administration ( AIR 1980 SC 1579), N. Nagendra Rao Co. vs. State of A.P. (AIR 1994 SC 2663), and Common Cause, A Registered Society vs. Union of India and Ors. (1999 (6) SCC 667). The Court rejected the plea of immunity and further held that in the instant case, two vital factors, namely police negligence as also the Sub-Inspector being in conspiracy were established as a fact, therefore the decisions in Nilabati Behera, In Re: Death of Sawinder Singh Grover, and D.K. Basu, would hold so far as fundamental rights and human rights or human dignity are concerned, and that the law has marched ahead like a Pegasus but the Government attitude continues to be conservative and it tries to defend its action or the tortious action of its officers by raising the plea of immunity for sovereign acts or acts of State, which must fail. In Ravikant Patil’s case [1991 (2) SCC 373], the Supreme Court rejected the appeal of the State against the decision of the Bombay High Court directing that compensation be paid to the undertrial prisoner for handcuffing and being taken through the streets as the police officers were guilty of violating a fundamental right under Article 21.
  24. 24. Supreme Court AIR 1983 SC 1086 Rudul Sah vs State of Bihar and Another Y.