TaxTMI 
TaxTMI 
2017 (9) TMI 1938
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....Ashok Kumar Singh, Ranjan Mukherjee, T.G. Narayanan Nair, K. Enatoli Sema, Edward Belho, Amit Kumar Singh, K. Luikang Michael, Z.H. Isaac Haiding, Anindita Pujari, Ashok Panigrahi, Uttara Babbar, Akanksha Chaudhary, S.S. Shamshery, Amit Sharma, Ankit Raj, Ruchi Kohli, Aruna Mathur, Avneesh Arputham, Anuradha Arputham, Amit Arora, Simran Jeet, Advs. for Arputham Aruna & Co., Gopal Singh, Rituraj Biswas, M. Yogesh Khanna, Maha Lakshmi, Sujatha Bagadhi, S. Udaya Kumar Sagar, Mrityunjai Singh, A.K. Upadhyay, Saurav Agrawal, Komal Mundhra, Rachana Srivastava, Monika, Sukrit R. Kapoor, Raja Chatterjee, Runa Bhuyan, Chanchal Kumar Ganguli, K.V. Jagdishvaran, G. Indira, M.S. Doabia, Sudarshan Singh Rawat, V.G. Pragasam, Prabu Ramasubramanian, Manu Sundaram, T.N. Rama Rao, Hitesh Kumar Sharma, T. Veera Reddy, D. Mahesh Babu, Ritu Kumar, Satya Mitra and Kamal Mohan Gupta, Advs. JUDGMENT Madan B. Lokur, J. 1. Custodial violence has always been a matter of great concern for all civilized societies. Custodial violence could take the form of third degree methods to extract information - the method used need not result in any physical violence but could be in the form of psychological vi....
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....y, 2016 we had dealt with the issue of overcrowding in prisons and had issued certain directions. In the present decision, we consider unnatural deaths in prisons. On this issue of unnatural deaths in prisons, the only reliable information available is from the National Crime Records Bureau or the NCRB. The website of the NCRB (2 ncrb.gov.in)^ indicates that deaths in judicial custody, both natural and unnatural, are as under: Year Natural Deaths Unnatural Deaths 2012 1345 126 2013 1482 115 2014 1507 195 2015 1469 115 6. The distinction made by the NCRB between natural and unnatural deaths is unclear. For example, if a prisoner dies due to a lack of proper medical attention or timely medical attention, would that be classified as a natural death or an unnatural death? This needs to be explained as submitted by the learned Amicus. 7. Be that as it may, the break-up of unnatural deaths given by the NCRB on its website is as under: Year Suicide Murder by inmates Death due to firing Assault by outside elements Negligence by jail staff Others 2012 87 4 10 4 0 22 2013 70 8 1 ....
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....o them in somewhat greater detail a little later. 11. The study conducted by the NHRC as reflected in the monograph suggests that there are two primary causes for all jail suicides-the first is the environment in the jail, which is apparently 'conducive' to suicidal behaviour, and the second is the crisis situation faced by an inmate. 12. Detailing the characteristics of a prison environment that make suicides in prisons more likely, the NHRC monograph mentions the following: 1. Authoritarian environment. 2. No apparent control over the future. 3. Isolation from family, friends and community. 4. The shame of incarceration. 5. Dehumanizing aspects of incarceration. 6. Fears. 7. Staff insensitivity to the arrest and incarceration phenomenon. 8. Hostility and bullying by other inmates. 9. Lack of adequate medical and psychological counseling and treatment facility. 10. Delay in deciding the parole. Similarly, the characteristics of a crisis situation are mentioned and they are as follows: 1. Recent excessive drinking and/or use of drugs. 2. Recent loss of stabilizing resources. 3. Severe guilt or shame over the offence. 4. Sam....
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....on dated 21st June, 1995 was sent by the NHRC to all the Chief Secretaries of States and the Union Territories clarifying that not only deaths in police custody but also deaths in judicial custody ought to be reported. This clarified the communication of 14th December, 1993 which was perhaps misunderstood by the Chief Secretaries and their subordinates to mean that the intention of the NHRC was to obtain information only with regard to deaths in police custody and not deaths in judicial custody. 18. On 10th August, 1995 the NHRC addressed a communication to the Chief Ministers of all the States on the necessity of video-recording of postmortem examinations in cases of custodial deaths. The reason behind this communication was that a post-mortem report is a very valuable record and has considerable importance in assisting in drawing conclusions on the cause of death of a person, particularly in a police lock-up or in a jail. The NHRC noted that though the process of video-recording of the post-mortem examination would involve extra cost, human life is more valuable than the cost of video-recording and in any case, occasions necessitating video-recording should ideally be very lim....
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....t the role of the NHRC is extremely important whenever there is an unnatural death in a prison. Although the NHRC has issued detailed instructions from time to time, it does appear however that these instructions are not being taken seriously but are being followed more in the breach. Nelson Mandela Rules 23. The learned Amicus submitted that the General Assembly of the United Nations adopted the Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) adopted on 17th December, 2015. These Rules provide useful internationally accepted guidelines for implementation by prison administrations across the country. He drew our particular attention to Rules 58 to 63 which deal with prisoner contact with the outside world. It was submitted that merely because a person is in prison, it does not mean that he or she should be cut off from the outside world. In fact, the prisoner should be allowed to communicate with his family and friends at regular intervals and should also be permitted to communicate and consult with a legal adviser of his or her choice. This by itself could have a soothing effect on the prisoner. He submitted that prisoners should be informed ....
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....dden or violent death or suicide takes place in a prison, immediate notice shall be sent to the concerned Superintendent and the Medical Officer. Paragraph 13.41 relates to custody of articles that could be used to commit suicide such as knives and tools used in worksheds and barber's or tailor's equipment as well as ropes for wells. It is provided that care should be taken that no such object is left about in the prison that may be used for committing suicide. In fact in paragraph 13.42 it is stated that prisoners with apparently suicidal tendencies should be carefully watched and not left alone in a cell. Such prisoners should also be referred to counselors and psychiatrists and should be supervised closely. Chapter XIII of the Manual also provides that reasonable caution should be taken to guard against accidents when convicts are employed on dangerous work such as blasting, excavation or other works of a dangerous character. It is also provided in paragraph 13.44 that poisonous drugs, surgical instruments and other similar items should not be left within the reach of prisoners. 28. The said Chapter XIII of the Manual contains a Section devoted to the issue of prevent....
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....ar whether it is made available to all the prisoners and even if it is made available, whether it is in a local language that the prisoner understands or whether the contents of the handbook are explained to the prisoner in the event the prisoner is found to be illiterate. In the absence of a prisoner having any knowledge about his or her rights, a grievance redressal mechanism is quite meaningless. Compendium of Advisories issued by the Government 31. The learned Attorney General then placed before us a Compendium of Advisories on Prison Administration 2016 issued by the Government of India. This was in the context of his submission that since 'prisons' is a State subject as per Entry 4 of List II of the Seventh Schedule of the Constitution, all that the Central Government can do is to issue advisories to the State Governments on the subject of prisons. The learned Attorney General submitted that advisories had been issued from time to time to the State Governments on a variety of issues, including on the issue of prison administration as well as stress relieving programmes such as yoga and meditation courses, Art of Living courses, Pranic courses and Vipassana. 3....
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....etition, submitted that there should be a 'performance audit' by the Comptroller and Auditor General in respect of prisons so that it is known whether all prisons are in fact adhering to the provisions of the Model Prison Manual or at least the Rules and Regulations framed by the State Government for the management of prisons. 35. Our attention was drawn to the report of the Comptroller and Auditor General of India (CAG) in respect of the Government of NCT of Delhi for the year ended 31st March, 2014 in relation to social, general and economic sectors. The submission made by learned Counsel appearing for the National Forum was that as a result of what could be termed as a performance audit, the CAG provided some very useful suggestions. In the particular audit referred to, it was pointed out that the hospital in Tihar Jail was not equipped to face any emergency situation as there was a shortage of doctors and other medical staff ranging from 18% to 62%. A reference was also made in the report to the problem of substance abuse in prisons and the shortcomings noted in the Drug De-addiction Centre in Tihar Jail. One of the shortcomings was the non-availability of essential ....
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....wn, and shall allow them to remain present at the inquiry. (5) The Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or police officer holding an inquiry or investigation, as the case may be, Under Sub-section (1A) shall, within twenty-four hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing. Explanation.--In this section, the expression "relative" means parents, children, brothers, sisters and spouse.) It was submitted that in view of the provisions of law, it was obligatory on the part of the State to ensure that an inquiry is conducted in respect of every death that takes place in custody. 37. The need for an inquiry into every death in custody was also emphasized by the learned Amicus, who submitted that there was discrepancy of data between deaths reported in prisons as per the NCRB and deaths reported in prisons as derived from the data available with the NHRC. It was submitted by the learned Amicus that this discrepancy needs to be....
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....e learned Amicus laid stress on providing basic medical facilities to the inmates which could even be in the form of a primary health centre. In this regard the learned Amicus referred to the discussions that he had with the Director-General of Police (Prisons) Karnataka, the Welfare Officer in Tihar, the former Inspector General of Police (Prisons) West Bengal and the report of Ms. Smita Chakraburtty which suggests that medical facilities in most prisons do not meet the minimum requirements of medical care. 10. The learned Amicus laid great stress on the constitution of a Board of Visitors comprising official and non-official visitors. The learned Amicus drew attention to an advisory issued on 18th February, 2011 by the Central Government for the appointment and working of non-official visitors for prisons. 11. The learned Amicus endorsed the suggestion of conducting performance audits for prisons across the country. 39. According to the learned Amicus, if these (and other) directions are given to the State Governments, prison reforms will become far more meaningful and the level of unnatural deaths will decrease. Compensation for unnatural deaths 40. The issue of c....
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....and Political Rights, 1966 which reads: "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation." 44. An unnatural death in judicial custody where one person was killed by a co-prisoner was the subject matter of discussion in Kewal Pati v. State of Bihar (1995) 3 SCC 600. It was held that as a consequence of imprisonment, a prisoner does not cease to have constitutional rights, except to the extent he or she has been deprived of them in accordance with law. Therefore, even a prisoner is entitled to protection and if he is killed while in prison, it results in a deprivation of his life contrary to the law, for which the next of kin are entitled to compensation. 45. In D.K. Basu v. State of West Bengal (1997) 1 SCC 416 this Court recognized that at the time of ratification of the International Covenant on Civil and Political Rights, 1966 in 1979, the Government of India made a specific reservation to the effect that the Indian legal system does not recognize a right to compensation for victims of unlawful arrest or detention and only became a party to the covenant, subject to this reservation. It was noted however, that th....
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.... damages in a civil suit. 46. Ajab Singh v. State of U.P. (2000) 3 SCC 521, Murti Devi v. State of Delhi (1998) 9 SCC 604 and more recently Rohtash Kumar v. State of Haryana (2013) 14 SCC 290 illustrate that custodial death is a clear violation of the prisoner's rights Under Article 21 of the Constitution and relief could be moulded by granting compensation to the next of kin of the deceased. 47. In addition to the above decisions and several others rendered by this Court, almost every High Court in the country has, at one time or another, also granted compensation for the unnatural death of a person in custody, whether an undertrial or a convict. A few such illustrations may be noted: a. Nina Rajan Pillai and Ors. v. Union of India 180 (2011) DLT 104 The husband of the Petitioner died in judicial custody due to inadequate medical treatment given by the jail authorities. The Lt. Governor of Delhi even appointed a Commission of Inquiry headed by Justice Leila Seth, a former Chief Justice of the Himachal Pradesh High Court to inquire into the circumstances that led to the death of the Petitioner's husband. The Delhi High Court awarded compensation for the unnatura....
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.... hospital. Due to the unnatural death in custody, the Allahabad High Court directed payment of compensation to the next of kin of the deceased. j. Mst. Madina v. State of Rajasthan and Ors. 2000 Cri. LJ 4484 The victim died in police custody on account of the use of third degree methods. Due to the unnatural death in custody, compensation was awarded by the Rajasthan High Court to the next of kin of the deceased. k. Dukhuram v. State of Chhattisgarh and Ors. 2011 (3) MPHT 81 The deceased was taken from the police station in order to recover stolen articles alleged to have been hidden by him at a secret place. He was brought to a pond and compelled to dive into the pond. At that time he was handcuffed and in chains. Subsequently, the dead body of the deceased was found floating in the pond. In view of the unnatural death while the deceased was in the custody of police officers, the Chhattisgarh High Court awarded compensation. l. Santosh Kumari v. State of H.P. and Ors. 2008 ACJ 1684 The victim died while he was in police custody and it was found that he had injuries on his head, shoulders, eyes, knees and private parts. He died in hospital as he was not given medi....
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....d actually come to grips with reality as it exists in a very large number of prisons. What is practised in our prisons is the theory of retribution and deterrence and the ground situation emphasizes this, while our criminal justice system believes in reformation and rehabilitation and that is why handcuffing and solitary confinement are prohibited. It is this 'rejection' of the philosophy of our criminal justice system that leads to violence in prisons and eventually unnatural deaths. 50. This Court has time and again emphasized the importance of Article 21 of the Constitution and the right to a life of dignity. There must be a genuine desire to ensure that the guarantee to a life of dignity is provided to the extent possible even in prisons, otherwise Article 21 of the Constitution will remain a dead letter. It must be appreciated by the State that the common person does not violate the law for no reason at all. It is circumstances that lead to a situation where there is a violation of law. On many occasions, such a violation may be of a trivial nature or may be a one-time aberration and, in such circumstances, the offender has to be treated with some degree of humanity....
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....an unnatural death is a criminal. Human rights are not dependent on the status of a person but are universal in nature. Once the issue is looked at from this perspective, it will be appreciated that merely because a person is Accused of a crime or is the perpetrator of a crime and in prison custody, that person could nevertheless be a victim of an unnatural death. Hence the need to compensate the next of kin. Custodial death of Children 55. One of the issues not touched upon by the learned Amicus or by the National Forum relates to the custodial death of children in child care institutions under the Juvenile Justice (Care and Protection of Children) Act, 2000 as well as the Juvenile Justice (Care and Protection of Children) Act, 2015. There does not appear to be any study carried out in this regard and it is rather unfortunate that the Central Government and the State Governments are oblivious to the possibility of death of children in custody in child care institutions. This is distressing. The pain and anguish of the next of kin of children who pass away in custody is not less, but more than the pain and anguish of the next of kin of any prisoner who suffers an unnatural de....
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....ge of prisons in every State and Union Territory. All efforts should be made, as suggested by the NHRC and Ors. to reduce and possibly eliminate unnatural deaths in prisons and to document each and every death in prisons - both natural and unnatural. 3. The Union of India through the Ministry of Home Affairs will direct the NCRB to explain and clarify the distinction between unnatural and natural deaths in prisons as indicated on the website of the NCRB and in its Annual Reports and also explain the sub-categorization 'others' within the category of unnatural deaths. The NCRB should also be required to sub-categorize natural deaths. The sub-categorization and clarification should be complied with by 31st October, 2017. 4. The State Governments should, in conjunction with the State Legal Services Authority (SLSA), the National and State Police Academy and the Bureau of Police Research and Development conduct training and sensitization programmes for senior police officials of all prisons on their functions, duties and responsibilities as also the rights and duties of prisoners. A copy of this order be sent by the Registry of this Court to the Member-Secretary of each S....