Vivek Gupta

Chandigarh, July 1, 2021: The Punjab and Haryana High Court on Thursday held as illegal the quasi-solitary confinement of seven hardcore prisoners currently lodged inside the central jail in Punjab’s Bathinda district. A bench of Justice Sudhir Mittal ruled that the prisoners’ current condition was violative of the rights guaranteed under Article 21 of the Constitution and fails the test of reasonableness.

Holding that security measures can be imposed only up to a limit, the high court also said the state government must adopt strict measures against jail personnel so that those guilty of aiding the criminals in carrying out unlawful activities inside jail premises are punished in an exemplary manner.

The court order said the condition of these inmates is quasi-solitary because they are deprived of human company for extended lengths of time and such confinement has been held to be extremely harsh and violative of basic human rights which remain the entitlement of every prisoner as per the Supreme Court.

“It can thus not be justified even on grounds of maintenance of discipline and order and curtailment of crime. A prisoner remains a person and cannot be reduced to animal existence,” Justice Mittal said while quoting the Supreme Court’s historic judgement in Sunil Batra vs. Delhi Administration that upheld the fundamental rights of death row prisoners against the wretched environment of the jail.

“Security measures can be imposed only up to a limit and this limit is placed by Fundamental Rights guaranteed under Articles 14, 19 and 21 of the Constitution of India, which are available even to prisoners,” added the judge.

Justice Mittal commenced his 24-page order with a statement extracted from a white paper titled “People in Prison” published by the British Government in November, 1969, which stated that a society that believes in the worth of individual beings can have the quality of its beliefs judged, at least in part, by the quality of its prison and probation services and of the resources made available to them.

He then quoted the Supreme Court’s judgement in 1980 in the Sunil Batra vs. Delhi Administration case to observe that more than four decades have elapsed since then, yet, the true import of the apex court’s directions did not seem to have percolated to the Administrators of Prisons, as is highlighted by the facts of present bunch of cases before the high court.

The court order came in response to a petition filed by seven out of 41 dreaded criminals who were shifted from different jails in Punjab to Bathinda central jail in March this year as part of the state’s security measurement. Since then, they have been in solitary confinement. 

The court in its order said each of the seven petitioners appears to be a professional criminal as a large number of cases have been registered against them, the least being 12 in number against Baljinder Singh @ Billa and the maximum being 37 against Gurpreet Singh Sekhon. Four of them are convicted persons, while the remaining three are undertrials.

 All these accused had a common plea that they were confined in a cell for 22 hours a day and were released therefrom only for two hours.

They stated in their petitions that this amounted to solitary confinement and the same violated their fundamental rights. They sought directions to grant the necessary facilities at par with other prisoners and as stipulated under the law, as also to protect their life and liberty.

The Punjab government in an affidavit stated that in the past there had been serious riots in Punjab jails, the latest being in 2019 in the Central Jail in Ludhiana.

The government’s affidavit added that when prisoners belonging to the same gang are confined in the same jail, they conspire to commit crimes outside jail and thus, continue with their nefarious activities despite being incarcerated. When prisoners belonging to different gangs are housed in the same prison, it results in riots and disorderly conduct. The problem is mainly caused by notorious criminals who operate in gangs and by terrorists.

Therefore, there were a series of meetings earlier this year at the highest level, presided over by the Cabinet Minister for Jails where decisions were taken to adopt greater security measures such as creation of communication dead zones, provision of jammers, provision of wire mesh/nylon mesh, assured electricity supply, provision of better intelligence and investigation of jail crimes and shifting of 42 hardcore/notorious prisoners to Central Jail, Bathinda, the affidavit said.

However, the state denied the allegation regarding solitary confinement. It stated that from sunset to sunrise, the petitioners were confined in the innermost area of their cells which also have space for bathing and ablutions. After sunrise, the prisoners were brought out into another part of the cell in which arrangements had been made in the roof for provision of sunlight and air. For two hours in a day, the prisoners are locked out or released from the cells.

Judge Sudhir Mittal stated that measures such as making jail premises inaccessible to wanderers, provision of adequate measures to secure prisons from external intrusion, creation of communication dead zones, installation of electronic equipment like jammers, CCTV cameras etc. need to be commended.

However, although general directions have been given to Jail Superintendents to review measures so that mobile phones are not smuggled into high security zones, no information has been provided regarding steps taken/to be taken against jail personnel who facilitate such smuggling, the court said.

 He further said simultaneously, strict measures need to be adopted against jail personnel so that those guilty of aiding the criminals are punished in an exemplary manner. Such steps, based on available information, appear to be lacking in their quest for improving jail discipline and making prisons crime free.

“Instead, the authorities have gone overboard and have violated valuable Fundamental Rights of the prisoners. Intention behind the act is immaterial as the act fails the test of reasonableness,” the judge held.

According to the judge, it is now well settled that prisoners are human beings despite their liberty having been curtailed. In Sunil Batra vs. Delhi Administration, the Supreme Court in the words of Justice Krishna Iyer observed: “Necessary sequitur is that even a person under death sentence has human rights which are non-negotiable and even a dangerous prisoner, standing trial, has basic liberties which cannot be battered away.

Considering that the release of notorious/hardened/dangerous criminals into ordinary prison life may create some issues, the court listed a few suggestions to ensure their humane treatment.

For example, the identified prisoners could be housed in separate barracks instead of cells where provision is also made for messing. Members of rival gangs could be confined in different barracks and the system of staggered lockouts could be retained.

Confinement to cells be restricted from sunset to sunrise and period of lockouts be increased, however, within the confines of high security zones. The final decision of course, would rest with the prison administration, but is always open to judicial scrutiny, it added.

The court deferred the matter for further proceedings on July 19. “The State of Punjab may apprise this Court of the measures intended to be adopted,” it added.

Read Order

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