Tag Archives: Fundamental Rights

Inhuman conditions in prisons: Supreme Court pulls up States and Union Territories for not bothering to prepare a Plan of Action

Newsroom24x7 Staff

There is over-crowding to the extent of 150% or more in jails in Assam, Chhattisgarh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Rajasthan, Uttar Pradesh and Delhi.

overcrowding-in-prisonsNew Delhi: Supreme Court of India, in response to a writ petition on “Inhuman Conditions in 1382 prisons” in the country, yesterday passed an order expressing distress by noting “even though this Court has held on several occasions that prisoners both under trials and convicts have certain fundamental rights and human rights, little or no attention is being paid in this regard by the States and some Union Territories including the National Capital Territory of Delhi.”

The Supreme Court order passed by a two Judge Bench comprising Justice Madan B. Lokur and Justice R.K. Agrawal categorically states: “Certainly fundamental rights and human rights of people, however they may be placed, cannot be ignored only because of their adverse circumstances.”

Further the Apex Court order points out that not a single State or Union Territory has bothered to prepare a Plan of Action and bring it to the Court’s notice or to the notice of the Amicus. Underscoring this, the Court has said that it is left with no option but to direct the States and the Inspector General of Prisons to prepare a Plan of Action, as already directed on 6 May 2016, for reducing the prison population.

On the information provided to the Court by the Amicus, on the basis of affidavits filed by some of the States, that there are proposals for constructing additional barracks or jails, the order says – these appear to be ad hoc proposals with no time limit specified for completion and in some cases it is not clear whether provision has been made for providing resources for the construction. In this regard, the Court has directed that a viable Plan of Action should be prepared within the next six months and in any event by 31 March 2017.

The Supreme Court has also pointed out that more than sufficient time has elapsed but the Manual for juveniles in custody has not yet been prepared by the Ministry of Women and Child Development of the Government of India. Hence the Court has directed the Ministry to expedite the preparation of the Manual and fixed 30 November 2016 as the deadline for this purpose.

With regard to over-crowding in jails, the Amicus has told the Court that there are several jails where over-crowding is to the extent that there are more than one and a half times the number of prisoners than the permissible limit. It was especially highlighted that an excessive prison population has its own set of problems including hygiene, sanitation, management, and discipline. In terms of suggestion, he submitted that in the first instance the States could be directed to identify jails in which over-crowding was to the extent of 150% or more so that further directions could be given. On the basis of this submission the Supreme Court had called for information. In this context the latest order says: “now find that the situation continues to be not only tragic but also pathetic.”

According to the Amicus, the Emicus drew Court’s attention in writing on 20 September 2016 regarding over-crowding to the extent of 150% or more in jails in Assam (8), Chhattisgarh (17), Jharkhand (3), Karnataka (7), Kerala (21), Madhya Pradesh (5), Maharashtra (16), Rajasthan (21), Uttar Pradesh (47) and Delhi (12). On this issue, the order says: “It is unfortunate that in spite of our directions the prison authorities have not been able to take any effective steps for reducing over-crowding in jails.”

The court has fixed October 18 as the next date of hearing in this case with the direction that the Union of India through the Ministry of Home Affairs should obtain the status of compliance of Court orders passed on 5 February 2016 and 6 May 2016 and on 30 September 2016. The Court has observed that even the rights of prisoners, whether convicts or under trials should be given due importance.

The Supreme Court has reminded the Union of India and the State Governments that as far back as in 1975 the Apex Court, in D. Bhuvan Mohan Patnaik v. State of Andhra Pradesh (referring to a decade old decision then in State of Maharashtra v. Prabhakar Pandurang Sangzgiri) had reminded that:

“Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to “practice” a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment, likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.”

The latest order also points out that a Constitution Bench of the Apex Court held in Sunil Batra v. Delhi Administration in paragraph 213 of the Report stated as follows:

“It is no more open to debate that convicts are not wholly denuded of their fundamental rights. No iron curtain can be drawn between the prisoner and the Constitution. Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed (see Procunier v. Martinex). However, a prisoner’s liberty is in the very nature or things circumscribed by the very fact of his confinement. His interest in the limited liberty left to him is then all the more substantial. Conviction for crime does not reduce the person into a non-person whose rights are subject to the whim of the prison administration and, therefore, the imposition of any major punishment within the prison system is conditional upon the observance of procedural safeguards (see Wolff v. McDonell).”

The October 3 order goes on to say:

“Unfortunately, it seems that the views of this Court over the 50 years (since Prabhakar Pandurang Sangzgiri in 1966) have continuously fallen on deaf ears and the situation does not seem to be changing even now.

Unless due importance is given to the fundamental rights and human rights of the people, the right to life and the right to live with dignity under Article 21 of the Constitution will have no meaning.”

Is the Madhya Pradesh Bharatiya Janata Party Government trying to extinguish people’s Right to constitutional remedies?

Lalit Shastri

fundamental ightsIs the Bharatiya Janata Party Government in Madhya Pradesh bent upon extinguishing the citizens’ Fundamental Right to constitutional remedies by following the route of bulldozing and passing a Bill through brute majority in the special one-day session of the state Assembly tomorrow in order to enact a law to prevent people from approaching the superior court directly to file writ petitions as public interest litigation (PIL) against State ministers or government officers accused of indulging in corruption on the basis of information procured through the Right to Information Act.

It is learnt that the state cabinet has given approval to a Bill likely to be introduced and passed in the State Assembly tomorrow. While the full details of the Bill are yet to see the light of day, it is understood that the Bill is intended to block or delay PILs and writ petitions against ministers and government officers. The operative portion of the Bill, it is further learnt, suggests that PILs or writs against ministers and state government officers by citizens on the basis of information procured through the RTI will be allowed only with the approval of the State Advocate General.

This amounts to snatching away the citizens’ right to constitutional remedies and is a clear violation of the the Fundamental Rights guaranteed under the Constitution. Right to constitutional remedies [Article 32 to 35] empowers the citizens to move a court of law in case of any denial of the Fundamental Rights. The courts can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari. Only when a national or State Emergency is declared, this right gets suspended by the central government.

The Constitution protects the citizens’ Fundamental Rights such as equality before law, freedom of speech and expression, and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violation of these rights result in punishments as prescribed in the Indian Penal Code or other special laws. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy.

Everyone knows that when a petition by a citizen comes up for mentioning at the Supreme Court or the High Court level, it is entertained only on merit and notices are served, otherwise the petitions are summarily dismissed. The court and the judges comprising the bench have the discretion and authority to decide whether or not the case is made out for protection of the right to constitutional remedy.

Notwithstanding the fact that the post of Advocate General is a constitutional post, what should not be lost track of is that the “Advocate General and his office defends and protects the interest of the State Government and gives invaluable legal guidance to the State Government in formulation of its policy and execution of its decisions” [Refer:-(1994) II SCC 204: State of U.P. & others v/s U.P. State Law Officers Associations & others]. Also in the Joginder Singh Wasu V/s State of Punjab [Refer:- (1994) I Supreme Court Cases 184], the Apex Court has categorically said: “The Advocate General and his Law officers are basically engaged to deal with the court cases in the High Court by the State Government and the relationship between the Government and Law Officers is that of a client and counsel.” The proposed Act of Madhya Pradesh government would amount to not just snatching away the fundamental rights of the citizens but also lead to encroaching upon the Superior Court’s power to decide whether or not a PIL has to be admitted on merit. It is obvious that the Act the State Government wants to enforce, even if it gets the Governor or the President’s assent would not pass the acid test of judicial scrutiny as it would not only undermine but extinguish the citizens’ Fundamental Right – the right to constitutional remedies – guaranteed under the Constitution.

Judges in a High Court are appointed by the President of India in consultation with the Chief Justice of India and the governor of the state. Independence of judiciary is the cornerstone and a basic feature of our Constitution and what is significant is that Indian Judiciary has been kept free from the executive only to protect the rights of the citizens.

The Advocate General of a State is also a constitutional post and is appointed under Article 165 of the Constitution of India and the function of the Advocate General is specified under Article 165 & 177 but it is only the State Governor, who appoints the Advocate general on the advise of the State Government.

A lot of water has already flown in the Narmada River – the lifeline of Madhya Pradesh – since, 31 years ago, when senior Advocate Pushpa Kapila Hingorani had brought a revolution in the country through a PIL and had taken up the plight of undertrial priseners suffering in Bihar jails. The then Chief Justice of India Justice P.N. Bhagwati had ordered the release of over 40,000 undertrial prisoners all over the country in response to that case.

Is the Madhya Pradesh Government trying to push the clock back and impose a draconian emergency-like situation in the State only to protect the deviant, the wayward and the corrupt in Government.