KRISHNA IYER - (1.) THE province of prison justice, the conceptualization of freedom behind bars and the role of judicial power as constitutional sentinel in a prison setting, are of the gravest moment in a world of escalating torture by the minions of State, and in India, where this virgin area of jurisprudence is becoming painfully relevant. Therefore, explicative length has been the result;and so it is that, with all my reverence for and concurrence with my learned brethren on the jurisdictional and jurisprudential basics they have indicated, I have preferred to plough a lonely furrow. THE Core-questions.
(2.) ONE important interrogation lies at the root of these twin writ petitions: Does a prison setting, ipso facto, out-law the rule of law, lock out the judicial process from the jail gates and declare a long holiday for human rights of convicts in confinement, and (to change the metaphor) if there is no total eclipse, what luscent segment is open for judicial justice? Three inter-related problems project themselves: (i) a jurisdictional dilemma between 'hands off prisons' and 'take over jail administration' (ii) a constitutional conflict between detentional security and innate liberties and (iii) the role of processual and substantive reasonableness in stopping brutal jail conditions. In such basic situations, pragmatic sensitivity, belighted by the preamble to the Constitution and balancing the vulnerability of 'caged' humans to State torment and the prospect of escape or internal disorder, should be the course for the court to navigate. I proceed to lay bare the broad facts, critically examine the legal contentions and resolve the vital controversy which has profound impact on our value system. Freedom is what Freedom does - to the last and the least - Antyodaya. Two petitioners - Batra and Sobraj - one Indian and the other French, one under death sentence and the other facing grave charges, share in two different shapes, the slings and arrows of incarceratory fortune, but instead of submitting to what they describe as shocking jail injustice, challenge, by separate writ petitions, such traumatic treatment as illegal. The soul of these twin litigations is the question, in spiritual terms, whether the prison system has a conscience in constitutional terms, whether a prisoner, ipso facto, forfeits personhood to become a rightless slave of the State and in cultural terms, whether man-management of prison society can operate its arts by 'zoological' strategies. The grievance of Batra, sentenced to death by the Delhi Sessions Court, is against de facto solitary confinement, pending his appeal, without de jure sanction. And the complaint of Sobraj is against the distressing disablement, by bar fetters, of men behind bars especially of undertrials, and that for unlimited duration, on the ipse dixit of the prison 'brass'. The petitioners seek to use the rule of law to force open the iron gates of Tihar Jail where they are now lodged, and the Prison Administration resists judicial action, in intra-mural matters as forbidden ground, relying on Ss. 30 and 56 of Prisons Act, 1894 (the Act, hereafter). The petitioners invoke Arts. 14, 21 (and 19, in the case of Batra) of the Constitution. The paramount Law, Prison discipline and judicial oversight. 4-A. The jurisdictional reach and range of this Court's writ to hold prison caprice and cruelty in constitutional leash is incontestable, but teasing intrusion into administrative discretion is legal anathema, absent breaches of constitutional rights or prescribed procedures. Prisoners have enforceable liberties devalued maybe but not demonetized; and under out basic scheme, Prison Power must bow before Judge Power if fundamental freedoms are in jeopardy. The principle is settled, as some American decisions have neatly put it. Donnel Douglas v. Maurice H. Sigler, 386 F 2nd 684. "The matter of internal management of prisons or correctional institutions is vested in and rests with the hands of those institutions operating under statutory authority and their acts and administration of prison discipline and overall operation of the institution are not subject to court supervision or control absent most unusual circumstances or absent a violation of a constitutional right." But Corwin notes, Supplement to Edward S. Corwin's The Constitution p. 245. "Federal courts have intensified their oversight of State penal facilities, reflecting a heightened concern with the extent to which the ills that plague so called correctional institution - overcrowding, understaffing, unsanitary facilities, brutality, constant fear of violence, lack of adequate medical and mental health care, poor food service, intrusive correspondence restrictions, inhumane isolation, segregation, inadequate or nonexistent rehabilitative and/or educational programs, deficient recreational opportunities - violate the Eight Amendment ban on "cruel and unusual punishments."
(3.) THE 'hands-off' doctrine is based on the fallacious foundation stated in 1871 in Ruffin v. Commonwealth: "He has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being, the salve of the State." (1871) 62 Vs. (21 Gratt) 790, 796. During the century that followed, the American courts have whittled away at the doctrine and firstly declared in Jordan that when the responsible prison authorities ... have abandoned elemental concepts of decency by permitting conditions to prevail of a shocking and debased nature, then the courts must intervene promptly to restore the primal rules of a civilized community in accord with the mandate of the Constitution of the United States. In Coffin v. Reichard, Substantive Criminal Law, p. 14 the court was persuaded to intervene when, while lawfully in custody a prisoner is deprived of some right, the loss of which makes his imprisonment more burdensome than the law permits: "When a man possesses a substantial right, the Courts will be diligent in finding a way to protect it. The fact that a person is legally in prison does not prevent the use of habeas corpus to protect his other inherent rights." ;